Sarthak Wadhwa

This piece analyses how the High Court of Orissa departed from the heteronormative marriage-centric jurisprudence of ‘live-in relationships’ to allow a trans-man and a cis-woman to cohabit, and how it adds to queer-rights jurisprudence in India.

In August 2020, the Orissa High Court decided the case of Chinmayee Jena @ Sonu Krishna Jena v The State of Odisha [WP(Cr) No. 57/2020: 2020 SCC OnLine Ori 602] – to uphold the right of a trans-man and a cis-woman to cohabit in a live-in relationship, after the former filed a writ of habeas corpus to prevent the latter’s family from marrying her off against her wishes. The Court recognized the petitioner’s right to be addressed as he/him per the Psychological Test for self-identification of gender, as laid down in the NALSA judgment; protected the petitioner and his partner from unwarranted interference with their personal autonomy; and, explicitly recognized their right to be in a live-in relationship outside of marriage. The High Court’s strong reliance on NALSA and Navtej Singh Johar has been the cause célèbre of a number of warm and empowering news reports which highlight how “the oft quoted maxim – love knows no bounds has expanded its bounds to include same sex relationships”, and how the law upheld the petitioner’s right to dignity and autonomy.

However, the judgment of the Orissa High Court in this case is more than just a sequitur to Navtej Singh Johar and the progressive realization of rights guaranteed by it. In recognizing the couple’s right to be in a live-in relationship the High Court departs from the precedent laid down by the Supreme Court vis-à-vis the law governing cohabitation relationships in India: whereas the law has always looked at live-in relationships as either a precursor to or a pale imitation of marriage – the Orissa High Court’s novel judgment successfully recognizes a ‘live-in relationship’ as an autonomous social institution outside of this limited marital framework.

Focusing on this relatively less stressed upon aspect of the judgement, this piece will show how the High Court’s iconic departure from the established law on ‘live-in relationships’ legitimizes them as products of individual autonomy and dignity, privileges them over regressive and conventional norms of societal conformity, and regards them as more than mere pseudo-marriages conforming to misguided heteronormative standards.

To this effect, the piece – first, analyses the judicial approach to live-in relationships and how the same has been limited to a test of marital character; second, distinguishes the present judgment from the aforesaid test; and, third, highlights the significance of the judgment in contemporary queer rights jurisprudence.

The Judicial Approach to Live-In Relationships

Live-in relationships in Indian jurisprudence were typically parsed via the lens of the English concept of a ‘common law marriage’ – where a couple was understood to be married if the partners were otherwise eligible to get married, cohabited voluntarily and held themselves out as married before society, irrespective of whether they were formally married in a ceremony. This approach relied significantly upon the social markers of marriage to legitimize cohabitation relationships and confer ‘marital’ rights upon them.

In 1927, in the intestate property dispute case of A. Dinohamy v W. L. Balahamy [AIR 1927 PC 185] the Privy Council looked at the domestic and social relationship of a cohabiting couple, and their public conduct as spouses – to hold that ‘marriage’ was inferable from the substance of the cohabiting couple’s behavior, and that concubinage could not be presumed in such cases. Similarly, in Badri Prasad v Dy. Director of Consolidation [(1978) 3 SCC 527] the Supreme Court recognized a rebuttable presumption of marriage in cases of long cohabitation between partners, putting a heavy burden of proof against the same on the challenging party, in consonance with Section 114 of the Evidence Act, 1872.

These social markers of marriage have permeated welfare legislation to protect such cohabitation relationships. The ‘de facto marriage’ test of being a ‘wife’ for the purposes of a maintenance order under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) – propounded by the Malimath Committee Report on Reforms of the Criminal Justice System – was used in K Vimal v K Veeraswamy [(1991) 2 SCC 375] to award maintenance to a woman who was not legally married to her partner but satisfied other social criteria of being his ‘wife’. Similarly, in Indra Sarma v VKV Sarma [(2013) 15 SCC 755] the Supreme Court looked at a roster of concomitant factors indicating a marital union, such as domestic, sexual, social, financial and parental arrangements. Without such arrangements, a relationship would necessarily be one of concubinage, which was not only deemed reprehensible per se but was also made actionable in tort by the parties affected by such a relationship.

Indices such as the ones mentioned above have been used to differentiate a ‘relationship in the nature of marriage’ under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter, “DV Act”) from casual ‘walk-in-walk-out’ cohabitation relationships verging on concubinage. This distinction was made by the Supreme Court in Madan Mohan Singh v Rajni Kant [(2010) 9 SCC 209] where the Court also recognized a live-in relationship as conceptually broader than a ‘relationship in the nature of marriage’.

While the celebrated judgment of the Supreme Court in S. Khushboo v Kanniammal [(2010) 5 SCC 600] is often cited to show how the Supreme Court has been welcoming of the former broader ‘live-in relationships’ in the past – this sensationalism around the case is a product of wishful thinking. It is peculiar that a case tackling questions of obscenity, defamation and free-speech which only makes an offhanded (and arguably misplaced) obiter about the legitimacy of live-in relationships has become the leading authority on the legal status of live-in relationships. An informed look at Khushboo reveals how the obiter on live-in relationships is infructuous: where the Court refers to Lata Singh v State of Uttar Pradesh [(2006) 5 SCC 475] to create an ostensible right to engage in a live-in relationship, it fails to notice how the question of premarital cohabitation was itself irrelevant to the matter in Lata Singh which dealt with the harassment of a woman who had married outside her caste; where the Court distinguishes between the legality and morality of cohabitation relationships to suggest how the supposed immorality of cohabitation relationships did not make them illegal – it fails to assess its own precedent in Rameshchandra Daga v Rameshwari Daga [(2005) 2 SCC 33] whereby the morality of a live-in relationship was made contingent on the marital character thereof, to accord it the cloak of legal protection. To this effect, even Khushboo does not redeem and remedy the Court’s limited understanding of interpersonal cohabitee relationships that are not of a marital character.

It is therefore overwhelmingly clear that a live-in relationship not resembling marriage is not one that the law has been comfortable in facilitating or even acknowledging. Evidently, the law has historically, statutorily, and judicially understood live-in relationships to be dilute/pseudo-marriages. A ‘relationship in the nature of marriage’ depends on the eligibility and inference of marriage from the social conduct of the parties: resultantly, it excludes such a relationship in which marriage is not presumable i.e. relationships between such queer folx who are ineligible to be legally married in India. This perpetrates a heteronormative and cis-gendered understanding of interpersonal romantic, domestic and/or sexual relationships while delegitimizing and alienating such relationships that do not fit this restrictive rubric. This is the bleak legal position from which the Orissa High Court departed to deliver its autonomy-affirming judgment in the matter of Sonu Krishna Jena.

Subverting the Law to affirm a Right

Quoting the NALSA judgment and citing the provisions of the Universal Declaration of Human Rights, 1948 (Articles 6, 7), the International Covenant on Civil and Political Rights, 1966 (Articles 16, 17) and the Yogyakarta Principles – the judgment of the Orissa High Court recognizes the self-determination of gender to be an integral part of human rights and personal autonomy. Per Anuj Garg v Hotel Association of India [(2008) 3 SCC 1] the same was found to be both a negative and a positive right: societal interference in individual autonomy was deemed inappropriate and the State was instructed to secure equal opportunities in realization of such autonomy.

The Orissa High Court refers to the Navtej Singh Johar judgment which links the concept of autonomy with that of human dignity. While the High Court does misplace and conflate its terminology viz. ‘sex’, ‘gender’ and ‘sexuality’ – this poses no impediment to its finding that the right to cohabitation with a person of one’s choice (irrespective of gender identity or sex) is a protected right under Part III of the Constitution of India. This autonomy is further affirmed by the fact that the Court extended the protection of the DV Act to the woman in the relationship under question – without any comment as to the marital characteristics of the relationship or lack thereof – simply upon an undertaking to be signed by the petitioner.

Even the woman’s family, which initially sought to separate the couple and forcefully marry her off – was warned against trying to unconstitutionally interfere with the autonomy and dignity of the partners in furtherance of their own regressive ideals. The reference to Shakti Vahini v Union of India [(2018) 7 SCC 192] solidifies the Court’s recognition of individual autonomy and also goes on to explain why, unlike the Supreme Court’s pronouncement in Indra Sarma, the present non-marital relationship did not invite any action against the petitioner for the intentional tort of alienating the woman from her family.

Notably, the Court consistently referred to this cohabitation relationship as one where the partners resided together: even while acknowledging the social stigma of the woman’s choice to reside with her trans partner the Court never applied the grammar of marriage to typecast the present case into the mo(u)ld of matrimony. In fact, a brief perusal of the judgment would reveal how the Court remained mindful of a ‘live-in’ relationship between the partners.

It understood the depth of their emotional commitment to each other whilst acknowledging the lack of any legal entanglements arising therefrom. It noted the ease of separation and the choice of cohabitation – elements notably absent in a conventional marriage – as the salient features of a ‘live-in relationship’, locating it in a genus different from ‘marriage’. Though marriage between the partners in the present case could possibly be solemnized under the Hindu Marriage Act, 1955 – per the findings of the Madras High Court in Arunkumar v The Inspector General of Registration [2019 SCC OnLine Mad 8779] – the judgment made no insinuations as to marriage and inferably respected the autonomy of the partners to only cohabit at the moment. In fact, by extending to the protection of the DV Act to the present relationship and recognizing other general duties under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 – the Court normalizes and validates the social institution of a ‘live-in’ relationship and treats it at par with ‘marriage’.

The relevance of such an autonomy-affirming progressive decision cannot be overstated in the contemporary legal climate which is witnessing a number of key developments in the rights jurisprudence of the queer community.

Assessing the Contemporary Relevance of Cohabitation Relationships

With Navtej Singh Johar, the Supreme Court has comprehensively declared the law with respect to queer folx, bringing their social and legal status at par with the conventional cis-het “normal” – for all intents and purposes. The Court’s interpretation of the equality code of the Constitution (i.e. Articles 14, 15, and 16) makes it amply clear that discrimination on the basis of sex characteristics, gender identity and sexual orientation is not tolerable in law.

However, the way the legal system keeps patting itself on the back over the decriminalization of homosexuality viz. reading down Section 377 of the Indian Penal Code – has held it back from substantive reform in the civil rights of queer folx. Myopic focus merely on the decriminalization of homosexuality, reduces queer relationships mere ‘deviant’ sexual conduct, undermining the sanctity of the non-carnal aspects thereof, and relegating the relationship itself to a stature inferior to other more conventional civil unions such as ‘marriage’ or ‘family’.[1] This is the inequality the judiciary has hitherto hesitated to address in substance. The Supreme Court itself has dismissed further pleas for the revision and extension of civil rights to the queer community, citing the limited scope of Navtej Singh Johar; and, the High Courts have deferred to the doctrine of ‘separation of powers’ in the past to justify their inaction in such matters – which in itself is incongruent with the mischief rule of statutory interpretation. Needless to say, the positive legislative steps that need to be taken for the “progressive realization of rights” are also either absent, or counterintuitive (read: the Transgender Persons (Protection of Rights) Act, 2019).

Notwithstanding the apathy of the Courts in this regard, petitioners have appeared before the High Courts of Kerala and Delhi – seeking the interpolation of gender-neutral terminology in the Special Marriage Act, 1972 and the Hindu Marriage Act, 1955, respectively, to allow “same-sex” marriage in law. With celebrated activists throwing their weight behind the Marriage Project to legalize marriage among partners of the same sex – the queer discourse in the country has seen vociferous critiques of the institution of marriage itself and how the same denies substantive equality to such queer folx who participate in alternate familial arrangements (such as chosen families and polyamorous relationships), and do not subscribe to the marriage-centric idea of family and monogamous love.[2] This is what necessitates the legitimization, promotion and equalization of autonomous social institutions and civil unions which promote holistic self-expression not only for queer folx but to anyone dissatisfied with the patriarchal and conformist notion of ‘marriage’.

The acknowledgment of a right to cohabit in a live-in relationship – arising from individual autonomy and the right to dignity – is a small step towards the realization of this broader right to an alternate/chosen family, and its parity with marriage as another equally valid social institution. With queer rights jurisprudence being subsumed by the Navtej Singh Johar judgment,[3] and its ‘champions’ driving the discourse towards ‘marriage’ – judgments such as Sonu Krishna Jena truly appreciate the nexus of autonomy and dignity which empower the Indian queer rights movement. The Orissa High Court’s appreciation of the spirit of the law unfettered by the encumbrances of their own invention – is what makes the judgment in Sonu Krishna Jena all the more noteworthy.

The author is a BA.LLB (Hons.) student at NLSIU Bangalore.

[1] Nancy Levit, ‘A Different Kind of Sameness: Beyond Formal Equality and Anti-Subordination Strategies in Gay Legal Theory’ (2000) 61 Ohio State Law Journal 867

[2] Nancy D Polikoff, ‘Why Lesbians and Gay Men Should Read Martha Fineman’ (2000) 8 American University Journal of Gender, Social Policy & the Law 167

[3] Jason Keith Fernandes, ‘Probing into the Freedoms of Queer Liberation in India’ (2020) 55(1) Economics and Political Weekly

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