Source: The Hindu

Introduction

Madras High Court recently gave a judgment rescuing the stance of same-sex marriage in the case of Sushma v. State (2023). The petitioner in the case requested the court to issue suitable orders to recognize the ''Deed of Familial Association'', recognizing the civil union entered into between LGBTQAI+ partners in order to protect the fundamental rights of persons forming part of this community.

What is Deed of Familial Association?

• To address the need for recognition of familial ties within the LGBTQAI+ community, including individuals, their partners, and those choosing to establish or maintain families with them, a proposed solution is the introduction of a 'deed of familial association (DFA)'.
• It will be an agreement which if implemented and made available for registration, this agreement could contribute to the social integration of LGBTQAI+ members and their chosen families, while also providing essential safeguards for these family units.
• The DFA should affirm the legal status of partners and their selected family members of legal age through registration.
• Additionally, it should act as a deterrent against several acts such as harassment, violence, discrimination.

What are the Suggestions Given by the Court on Deed of Familial Association?

• The Deed of Familial Association is proposed by the petitioner only to safeguard the rights that have been guaranteed under Article 21 of the Constitution of India.
• It will at least give some respect and status to same sex relationship.
• HC suggested that 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 HC shall be kept in mind while finalising the Policy for the LGBTQAI+ community.

What is the Impact of Jurisprudence upon Sushma v. State (2023) Judgment?

• Jurisprudence covers the principles of Henry Maine and Graveson, emphasising the progression of law from status to contract and then to statute.
• “Status to contract” is adopted from Chapter V of the work of jurist Henry Maine Ancient Law (1861).
  • Maine described the transition to advanced societies from a fixed social position (status) to a mutually agreed upon arrangement (contract).
• Later, it was propounded that contract turns into law.
• However, with the Supreme Court's ruling in Supriyo v. Union of India (2023) stating that statutes, including the Constitution and marriage laws, cannot be relied upon, hence the judgement of Madras HC gave importance to contractual aspect of the law.

What Should the Tamil Nadu Government Do Now Regarding this Judgment Sushma v. State (2023)?

• The State government has the authority to pass laws establishing the concept of Civil Unions and granting such recognition to same-sex couples.
• According to the Supreme Court, this falls within the purview of the legislature.
• Furthermore, various laws concerning marriage, divorce, inheritance, succession, minors, adoption, etc., are all listed in the Concurrent List of the Seventh Schedule to the Constitution, hence the State government is authorized to make a law.

Conclusion

The Madras High Court's judgment opens the door for a more inclusive and rights-affirming legal landscape, and it is now the responsibility of the State government to translate this progressive vision into tangible legal frameworks that provide equal protection and recognition to all members of the LGBTQAI+ community.