Madras High Court urges State to recognise 'Deed of Familial Association' to protect rights of same-sex couples

The Madras High Court on Friday urged the State government to formulate a procedure for registration of 'Deed of Familial Association' which will give a stamp of approval to same-sex relationships and enhance the status of persons in such relationships in society..Justice N Anand Venkatesh said that such a provision could safeguard the rights of members of the LGBTQIA+ community and ensure that they are able to live without being disturbed or harassed.The judge also noted that the right to choose to have and live in a relationship and the right to protection from harassment was recognised by the majority opinion of the Supreme Court in the Constitution Bench decision in Supriyo @ Supriya & Anr. v Union of India."In the considered view of this Court, the proposal that has been brought forth by the petitioner, prima facie sounds convincing. This is more so, since the apex court in the Supriyo's case, 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. For that purpose, the Deed of Familial Association will at least give some respect and status to such relationship," the Court said.Justice Venkatesh, therefore, directed the Social Welfare and Women Empowerment Department, which is already in the process of finalizing a policy for the LGBTQIA+ community, to consider a system for registering deeds of familial association."While undertaking this exercise, this 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. 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. This suggestion given by this Court shall be kept in mind while finalizing the policy for LGBTQAI+ community," the order stated. .The order was passed on an intervening application moved in a case that originally began with a plea by a lesbian couple seeking protection from their relatives. Over the course of hearing the matter, the Court had issued several directions in an effort to further the welfare of LGBTQIA+ persons.The intervenor in this instance sought a direction to the concerned authorities to issue suitable orders to recognize the deeds of familial association.According to the intervening petitioner, the purport of this deed is to ensure that two persons will have the right to live in a relationship. While continuing with that relationship, they will also have the right to protection. It was also submitted that harassment of persons falling within the community is a daily affair which has to be countered through some means in the available legal framework. Therefore, if the parties enter into a contract in the form of a deed of familial association, whenever questions are asked or their safety is in danger, the deed could come to their aid. The counsel told the Court that deed cannot go beyond its purpose or seek any further status in the light of the majority judgment of in Supriyo's case. It was also brought to the notice of the Court that such a contract that is entered into between two individuals is not barred under the Indian Contract Law and hence, it was contended that this proposal that has been made by the petitioner can be taken into consideration by the government and a stamp of approval can be given. According to the petitioner, the deed of familial association will be confined to:harassment or violence or ill-treatment by society or even the biological families; anddiscrimination that can impact gainful employment, housing and assimilation in society..The Court opined that the proposal of the petitioner was prima facie convincing and issued directions to the concerned authorities to take it into consideration while drafting a policy for the LGBTQIA+ community..[Read Order]