When Sonu and Subhashree met in school and fell in love, they could hardly have imagined that one day they’d have to approach a High Court to validate their right to do what most of the cisgender-heterosexual (or cishet) couples take for granted – the right to live together. And yet as a trans man-cis woman couple, the odds were perhaps always against them.

Sonu and Subhashree’s story is not a new one or even the only one. Faced with violence from their natal families, some queer couples, even when both individuals involved are adults, are left with little option but to approach the courts as a measure of last resort. For persons assigned female at birth, instances of natal families filing false abduction charges against their partner is a surprisingly common tactic to curtail their autonomy when it comes to the choice of a partner. Marriage with all of its cishet trappings is like the Sword of Damocles forever hanging over their heads. The reading down of Section 377 of the Indian Penal Code, 1860 in 2018 and the recognition of the rights of transgender persons since 2014, however, have thrown open a window of opportunity to challenge the natal family’s coercive tactics.

Quote: In recent times, a number of queer couples have approached the courts to recognize their right to cohabitation. In most such instances, the courts have passed orders recognizing such a right as part of Article 21 of the Constitution. However, such orders rarely mean the end of the ordeal that the couples have to go through. A sole emphasis on the ‘success’ of these orders itself displaces attention from the range of support systems and structures that have to work in coordination to make such a right possible in the first place.In recent times, a number of queer couples (involving two women or a trans man and a cis woman) have approached the courts to recognize their right to cohabitation. In most such instances, the courts have passed orders recognizing such a right as part of Article 21 of the Constitution. However, such orders rarely mean the end of the ordeal that the couples have to go through. A sole emphasis on the ‘success’ of these orders itself displaces attention from the range of support systems and structures that have to work in coordination to make such a right possible in the first place. Further, the problems of marginality, discrimination and exclusion in society don’t simply disappear because of a court order.

We followed up with some of the queer couples who approached the courts to see what their lives were like after the court verdicts. We also spoke to the crisis intervention workers from NGOs like SAATHII and Sappho for Equality who helped the couples approach the courts. Did such court interventions bring about significant improvement in the quality of life of the applicants? If yes, in what way? We wanted to understand what kind of opportunities such court orders present and the constraints they operate within.

Fighting for love

Sonu, a trans man around 25 years old now, and Subhashree, a cis woman aged 24, were living together in Bhubaneshwar since 2016. Subhashree’s family was opposed to their relationship and had tried, since the time they were in school, to separate them. However, after graduating, Subhashree moved out of her home and moved into Sonu’s rented apartment in Bhubaneshwar. Her parents were unaware of this. When they found out, her mother and uncle tracked the couple down and filed abduction charges against Sonu. It was during the first COVID-19 lockdown in April 2020 that Subhashree’s relatives came to Bhubaneshwar and with the help of the police, forcibly took her away. This was despite the fact that anticipating trouble, the couple had made an affidavit declaring their intention to live together (as two adults) in January-February 2020. The police in dealing with the abduction charges completely ignored this affidavit and instead forcefully made Subhashree sign a statement stating that she had been coerced against her will to live with Sonu.

Attempts by community intervention workers from SAATHII to resolve the matter outside of court by talking to Subhashree’s mother did not meet with much success. Neither were the police or the Khordha District Legal Services Authority, Bhubaneswar able to help much given how well connected Subhashree’s uncle was politically. As a last resort, Sonu approached the Odisha High Court by filing a habeas corpus petition which compelled the police to present Subhashree before the court.

Another similar story is that of a couple from Manipur. TN, a trans man, had been in a relationship with DN, a cis woman, since 2016. They lived together at TN’s place. While TN’s father was supportive of their relationship, DN’s parents were opposed and filed abduction charges against TN in early 2018 (TN was around 28 years old then and DN was 22). Here too, the couple had already made an affidavit in court declaring that they were adults and had mutually consented to stay with each other. However, this did not prevent the police from interfering with the couple and arresting TN.

In Kolkata, we followed the story of SSG, a trans masculine person, and their partner MSB, a cis woman, who had been in a relationship since 2017. They both worked in service sector jobs and belonged to a lower middle class background. Trouble began in early 2018 when MSB’s family came to know about the nature of their relationship. Both of them were verbally and physically abused. On SSG’s insistence, MSB filed a general diary complaint against her family members, but the police took no action. The couple decided to run away from home. They stayed for a month at a common friend’s place and later managed to rent a flat in Baruipur, a southern suburb of Kolkata. However, in November 2018, MSB’s family managed to locate the couple and dragged MSB away in full public view. They forcefully admitted her into a dubious rehabilitation clinic. It was at this stage that SSG decided to approach local organizations Sappho for Equality and Varta Trust for legal aid. Lawyers associated with Varta Trust filed a habeas corpus petition in the Calcutta High Court on behalf of SSG.

Quote: What is lacking in these court orders is recognition that the couple need a lot more support from the State and other local authorities in order to be able to exercise their right to stay together. This includes not only police protection and support, but also support in accessing affordable housing, economic resources, legal aid services, and psychological and emotional support services. A recent Madras High Court order in fact provided a detailed order recognizing precisely the need for a coordinated approach of various such agencies when it came to enabling the couple in question to live together.

Courts to the rescue?

While in the cases of Sonu and Subhashree in Odisha and SSG and MSB in West Bengal, the state High Courts passed the relevant orders, DN and TN appeared before the local Magistrate Court.

In each of these orders, the courts recognized that if the parties were adults, the right to consensual cohabitation fell within their right to self-determine their choice of a sexual partner, which was protected under Article 21 of the Constitution. Such a right cannot, as the Calcutta High Court noted in SSG Vs. State of West Bengal & Others, be “whittled down on the concept of morality or religion of others.”

Similarly, in Sonu Krishna Jena Vs. State of Odisha & Others, citing the verdict on the reading down of Section 377 (Navtej Singh Johar & Others Vs. Union of India Ministry of Law and Justice), the court recognized that personal autonomy had elements of both positive and negative rights. That is, not only did it include the negative right of not being subject to any interference, but also the positive right to make decisions about one’s life. These rights would therefore include the right to have a live-in relationship with a person of one’s choice.

In the case of DN and TN, technically the question of whether the couple had a right to live together was not under challenge. But the Chief Judicial Magistrate, who was hearing a bail application filed by TN, observed that DN and TN were two adults who wished to stay together, and one of them belonged to the vulnerable transgender community. The judge said that these facts should be taken into account while conducting any investigation into the complaint that TN had abducted DN.

However, what is lacking in these court orders is recognition that the couple need a lot more support from the State and other local authorities in order to be able to exercise their right to stay together. Often this includes not only the need for police protection and support, but also support in accessing affordable housing, economic resources, legal aid services, and psychological and emotional support services. A recent Madras High Court order in fact provided a detailed order recognizing precisely the need for a coordinated approach of various such agencies when it came to enabling the couple in question to live together. Further, it kept the case open as a continuing mandamus so that it could monitor the progress of the State agencies in working towards those directions.

Both the SSG and Sonu Krishna Jena orders, in comparison, were woefully inadequate in this regard. While the latter did direct the police to provide the couple with protection as required, neither went so far as to identify agencies of support that the couple might have turned to if their right continued to be interfered with. In fact, in the Sonu Krishna Jena order, one of the judges moralistically noted that Subhashree “should not forget her duties towards her mother and younger sister i.e. look after their financial, social and emotional well-being”, despite them being among the very people who were responsible for the harassment and abuse Subhashree and her partner had to undergo.

Further, in the case of SSG and MSB, the court ordered a medical board to be set up to examine MSB’s mental well-being since her family had alleged that she was mentally unfit to make her own decisions. The board took one and a half months to file its report. Such processes not only serve to delay justice but also allow families the time to emotionally wear down the victim. Though we can’t conclusively say this is what happened with MSB, it could’ve been one of the factors behind her finally giving a statement during the proceedings that though she was in a relationship with SSG, she had reconsidered the same and wanted to go back to her natal family rather than live with SSG.

Quote: For the Odia and Manipuri couples, the court orders did lead to some positive outcomes. The parents stopped interfering and the couples were able to live together. However, as observed from Sonu and Subhashree’s case, it wasn’t all smooth sailing. For one, despite the court order, compliance did not follow easily. Subhashree was held hostage by her relatives for a while till the police were able to find her. In this case, the police cooperated and were able to locate her, but as the community intervention workers informed us, police attitudes can vary depending on the level of training and sensitivity towards LGBTIQA+ issues that they may have received.

Life after court verdicts

After the court order was passed in Sonu and Subhashree’s case, the police called the parties to the station. But Subhashree was held hostage by her uncle and failed to show up. Fortunately, after a few days the police were able to locate Subhashree and were able to bring her to the police station where she was finally able to meet Sonu again. Following that incident, they have been living together and there hasn’t been any interference from Subhashree’s family. However, Subhashree doesn’t have much contact with them. She’s been trying to get access to her university documents which she left behind at her natal home. Community Intervention workers at SAATHII tried to intervene on her behalf and spoke to Subhashree’s mother. She refused to cooperate. Subhashree is now attempting to get these documents from her university. These documents are crucial for her to apply for jobs anywhere. Meanwhile, Sonu lost his job during the COVID-19 pandemic and is looking for fresh opportunities. They say that despite the ordeal they went through, it hasn’t dimmed their desire to live with each other and build a shared life together.

For DN and TN, their lives have witnessed markedly less interference and harassment since the court order. The investigation was closed and they’ve been living together and running a small grocery store. Not only have the police stopped interfering, so have DN’s parents. Though still somewhat estranged, DN is in touch with her parents. Notably, TN’s father played a hugely supportive role by helping the couple set up their grocery store.

A community intervention worker with Sappho for Equality informed us that despite several attempts, they had lost touch with SSG, who had shortly after the court verdict, changed their phone number.

Court orders are only a beginning

For the Odia and Manipuri couples, the court orders did lead to some positive outcomes. The parents stopped interfering and the couples were able to live together. However, as observed from Sonu and Subhashree’s case, it wasn’t all smooth sailing. For one, despite the court order, compliance did not follow easily. Subhashree was held hostage by her relatives for a while till the police were able to find her. In this case, the police cooperated and were able to locate her, but as the community intervention workers informed us, police attitudes can vary depending on the level of training and sensitivity towards LGBTIQA+ issues that they may have received.

Often, when local CBOs get involved in such cases, the police do try to assist the couple in trouble. As Randhoni Lairikyengbam, who is Assistant Director in the Imphal office of SAATHII, said, “When community organizations such as Empowering Trans Ability or All Manipur Nupi Maanbi Association, or technical support organizations such as SAATHII are involved, the legal and police support to some extent is rather easy.” However, there are several other cases where community intervention workers may not be involved or may not be able to support the couple. Further, while the police may not interfere in the lives of the couple after a successful court order, they rarely go beyond non-intervention to actively provide protection. This is evidenced by the fact that despite the court order Subhashree was unable to get back her university and other documents kept at her natal home. Had the police accompanied her, perhaps she could have.

Another factor that worked in the favour of both the couples was that they had access to some housing. In DN and TN’s case, TN was supported by his father who helped him acquire a small house where he could reside with DN. Similarly, Sonu already had an accommodation where Subhashree had moved in. However, there are many queer couples who are not as lucky. Finding a place to stay after leaving home is crucial.

The community intervention worker from Sappho for Equality said that the state-based shelter homes run by the West Bengal Commission for Women are often not a viable option given that such shelter homes are often occupied by individuals with a history of drug use or those involved in sex work. Fearing disrepute, queer couples may not want to stay at such homes. Even when shelter homes are run by trans community groups under the Garima Greh scheme of the Ministry of Social Justice & Empowerment, Government of India, only the trans masculine partners are able to access them, not their cis-woman partners.

Continued estrangement from the natal family, especially in the case of the cis-woman partners, is another issue that needs attention. Randhoni informed us that emotional and psychological support services are often in acute shortage and one of the things that a couple needs the most during the period of crisis and even after are such mental health support initiatives. Queer support groups like Sappho for Equality and Nazariya (in Delhi), and NGOs like SAATHII address some of the gaps. But such queer affirmative support services are usually concentrated in capital cities and are nearly not enough to cater to all.

Finally, the factor that makes the biggest difference in determining whether a couple can lead an independent life together is the degree of financial stability they enjoy. In the case of DN and TN, financial and emotional support from TN’s father was crucial in helping the couple achieve some form of economic stability and independence which enabled them to live together. Sonu too had a job which enabled him to approach the court when Subhashree was forcibly taken away. However, currently, given the pandemic, he is out of employment. Subhashree too is unable to apply for a job since her educational documents are still at her natal home. Without financial independence and stability, these individuals may have to fall back on queer support groups or even their natal families for assistance. If it is the latter, it may even prevent them from staying together.

Quote: On enquiring why some of the cis-woman partners don’t file cases of domestic violence against their natal families under the Protection of Women from Domestic Violence Act, 2005, we were informed that there’s a lot of resistance to file cases against family members. This isn’t simply out of love or concern but also pragmatism that often the natal families are the only form of security and safety net in their lives. They are not in a position to completely break links with their families. This continues to trap them in a cycle of everyday violence and precarity. Do alternative safety nets exist and are they strong enough to assist queer couples in going all out to fight for their right to cohabit?

Wider support needed for queer cohabitation

Favourable court orders recognizing the right of queer couples to reside together is definitely a welcome development. DN and TN’s story demonstrates the power that timely court orders can have in the lives of queer couples when it comes to their right to cohabit. But these success stories are often few and far in between and represent only the tip of the ice berg when it comes to queer couples trying to build a life together free from family interference and violence.

It may be easy to assume looking at the success of the court cases on queer cohabitation that the path towards living together involves simply approaching the court and getting an order in one’s favour. As the community intervention worker from Sappho for Equality explained, this is far from the truth. Most such cases never reach the court and are in fact ‘resolved’ at the family level itself with the involvement of the police, NGOs and queer support groups. On enquiring why some of the cis-woman partners don’t file cases of domestic violence against their natal families under the Protection of Women from Domestic Violence Act, 2005, we were informed that there’s a lot of resistance to file cases against family members. This isn’t simply out of love or concern but also pragmatism that often the natal families are the only form of security and safety net in their lives. They are not in a position to completely break links with their families in the event that their relationship falls through. This continues to trap them in a cycle of everyday violence and precarity. Do alternative safety nets exist and are they strong enough to assist queer couples in going all out to fight for their right to cohabit?

Queer cohabitation therefore requires diverse support systems and services in addition to the protection that the law of the land extends to queer couples. These systems and services must address the socio-cultural barriers that the queer couples are bound to encounter. It’s unlikely that queer cohabitation can succeed just on islands of legal approval surrounded by a sea of family and social disapproval.

The couples from Manipur and West Bengal (DN and TN and SSG and MSB, respectively) could not be interviewed directly for this article. But their stories and the court orders they received have already been in the public domain. Nonetheless, in the absence of specific consent from the individuals concerned on the use of their names, we have initialized the names – given the sensitivities involved – to ensure as much privacy as possible – Editor.

Main graphic credit: Pawan Dhall (graphic based on Clip Art by Microsoft Office).