Consider Evolving Procedure To Register "Deed Of Familial Association" To Protect Rights Of LGBTQIA+ Partners: Madras High Court To TN Govt

Previously, the Tamil Nadu government had informed the Madras High Court that it was in the process of finalizing a policy for the LGBTQIA+ community. This policy is a first in the country as no State has yet come forward with policies for the well-being of the LGBTQIA+ community. Although many states, including Tamil Nadu, have policies for the welfare of Transgender community, this is the first time a state will bring in a policy for the LGBTQIA+ community.

The state had also informed the court that the Draft Rules for Tamilnadu Transgender Persons (Protection of Rights) Rules, 2022 has already been notified and the same has been forwarded for approval by the Law Department. The Additional Advocate General had also informed the court that the State Planning Commission had presented the draft policy for the LGBTQIA+ community to the Chief Minister and it had been forwarded to the concerned department for further action.

Intervening in the ongoing hearing, Prasanna submitted that there was a need for familial recognition among the LGBTQIA+ persons who choose to form and retain families. Prasanna suggested that through the “Deed of Familian Association”, two persons will have a right to live in a relationship and will also get a right to protection.

Pointing to the harassment that the LGBTQIA+ persons were facing in the society in their daily affairs, Prasanna submitted that if the parties enter into such a deed, it could come in handy whenever a question is raised on their relationship or when they are put to shame and harassment or otherwise face danger.

The court, after looking into the recent Supreme Court verdict in Supriyo’s case, noted that the Apex Court had clearly recognised the right to choice of two persons to have and live in a relationship and their right to protection and also their right not to be harassed. The court further observed that the “Deed of Familial Association” would only safeguard the rights that were already guaranteed under Article 21 of the constitution.

Noting that such a deed was not barred under the Indian Contract Act., the court added that the deed will at least give some respect and status to the relationship between two persons.

“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 Hon'ble Apex Court in the Supriyo's case [cited supra], 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 observed.

Since the Social Welfare and Women Empowerment Department was already in the process of finalising the policy for the LGBTQIA+ community, the court suggested that there could consider Prasanna’s proposal and come up with a procedure to register the deed. The court added that by doing so, the State could give its stamp of approval to persons, who are in a relationship in the community and enhance the status of such persons in the Society to a great extent.