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Synopsis

The Madras High Court has recently called upon the State government of Tamil Nadu to explore a process for registering "Deed of Familial Association" for LGBTQIA+ partners, signaling a move towards recognizing civil unions.

"If that is done, the State will be able to give its stamp of approval to persons, who are in a relationship in the community and to a great extent, this will enhance the status of such persons in the Society", said a single judge bench of Justice N Anand Venkatesh.

"This suggestion given by this Court shall be kept in mind while finalizing the Policy for LGBTQIA+ community", the court ordered in the order passed on last Friday. 

The court was dealing with a writ miscellaneous petition (WMP) within a case initiated by a lesbian couple seeking protection from their relatives. The court had previously issued various directives to promote the welfare of LGBTQIA+ individuals during the proceedings.

Through the WMP, a direction was sought to the concerned respondent authorities to issue suitable orders to recognize the ''Deed of Familial Association'', recognizing the civil union entered into between LGBTQIA+ partners.

In the order, court emphasized that implementing such a provision would safeguard the rights of the LGBTQIA+ community members, ensuring their ability to live free from disturbance or harassment.

While dealing with the issue at hand, court highlighted the Supreme Court's recognition of the right to choose and live in a relationship, as well as protection from harassment, in the Constitution Bench decision in Supriyo @ Supriya & Anr. v Union of India and said that it had to necessarily keep in mind the ratio in the said judgment while dealing with the petition at hand, since no orders could be passed in the petition, beyond the right that had been recognized by the apex court in the said judgment.

Court stressed that the petitioner had proposed a ''Deed of Familial Association'', the purpose of which was to ensure that two persons will have the right to live in a relationship.

It further highlighted that it had been brought to its notice that such a contract that would be entered into between two individuals will not be barred under the Indian Contract Law.

Court underscored that according to the petitioner, the Deed of Familial Association will confine itself only to;

(a) harassment or violence or ill-treatment by Society or even the biological families, and

(b) discrimination that can impact gainful employment, housing and assimilation in Society.

In the considered view of this Court, the proposal that has been brought forth by the petitioner, prima facie sounds convincing, held the single judge bench. 

It said that since, the apex court has categorically recognized the right of choice of two persons to have relationship, in view of the same, such persons must have protection to live in the Society without being disturbed or harassed and "for that purpose, the Deed of Familial Association will at least give some respect and status to such relationship".

Court noted that the Social Welfare and Women Empowerment Department is already in the process of finalizing the Policy for the LGBTQIA+ community and therefore, said that while undertaking this exercise, the suggestion/proposal given by the petitioner can be taken into consideration and the State can come up with a procedure for registration of such Deed of Familial Association and the scope of such a Deed.

Case Title: Prasanna J v. Mrs. S Sushma and 27 Others and Connected Matters