What defines a family in a constitutional democracy? Is it biology, marriage, tradition, or can it be freely chosen by those who live and love within it? In a powerful affirmation of personal liberty and evolving social identity, the Madras High Court in M A v Superintendent of Police & Others[1] answered this question with unflinching clarity. Responding to a habeas corpus petition filed by a woman seeking the release of her same-sex partner from confinement by her family, the Court upheld not only the partner’s right to personal liberty, but also recognized their relationship as a chosen family, one that deserves respect and protection under the Constitution.  

“Marriage is not the sole mode to find a family. The concept of a ‘chosen family’ is now well settled and acknowledged in LGBTQIA+ jurisprudence,” the court said, setting the tone for a judgment that is both constitutionally grounded and courageously humane.

In this case, while narrowly focused on the freedom of an individual unlawfully confined by her natal family, the court’s ruling extends far beyond that singular act of detention. It becomes a judicial lens through which broader questions about sexual orientation, state responsibility, and the evolving definition of family are brought into constitutional focus. In doing so, the judgment builds upon the post-Navtej [2]framework, advancing a vision of LGBTQIA+ rights rooted not merely in tolerance, but in dignity, recognition, and equal protection under the constitution

This judgment is part of an emerging judicial pattern in which habeas corpus is invoked not solely as a safeguard of physical liberty, but also to support the emotional and personal choices of queer individuals. It highlights that queer freedom in India goes beyond just decriminalizing homosexuality or seeking marriage rights, it also means being fully included in the legal systems that define family, ensure protection, and respect personal choice.

Habeas Corpus as a Queer Legal Strategy

In recent years, habeas corpus petitions have increasingly emerged as a powerful legal recourse for queer community seeking to assert their autonomy against familial control or unlawful confinement. Since the ruling in S. Sushma v Commissioner of Police[3], courts have increasingly recognized that these petitions do more than secure physical liberty; they validate emotional and relational ties that exist beyond the boundaries of formal marriage law. The present case follows this growing legal trend, where habeas corpus is used to defend not only liberty, but also the personal autonomy of queer individuals. In Devu G Nair v State of Kerala (2024[4]), the judiciary highlighted the need for procedural fairness, confidentiality, and the consent of the adult individual. Together, these cases show a clear shift: the judiciary is increasingly treating queer autonomy not as incidental to constitutional rights, but as central part of the constitutional right to live with dignity and freedom.

A petition for liberty, grounded in love.

The case revolved around the liberty of a 25-year-old woman, D, who was allegedly being unlawfully confined by her natal family for being in a romantic relationship with the petitioner, another woman. Invoking Article 226 (which empowers High Courts to issue writs for the enforcement of fundamental rights). The petitioner filed a writ of habeas corpus for D’s release from the custody of her father, the fourth respondent. According to the procedural safeguards outlined by the Supreme Court in  Devu G Nair v State of Kerala, which provides procedural safeguards in such sensitive matters, the Madras High Court conducted an in-camera interaction with the detenue to ascertain her wishes independently and confidentially.

D clearly stated that she identified as a lesbian, was in love with the petitioner, and wished to live with her. She recounted physical violence, coercion to undergo rituals to “convert” her orientation, and a credible threat to her safety. As the detenue expressed in her in-camera statement to the court, “I just want to live my life with the person I love without fear, without being ‘fixed’, and without being taken away again.”

Judicial empathy and a progressive constitution

Justice G.R Swaminathan’s judgement, delivered with characteristic constitutional clarity, declined to treat D’s orientation as a disorder or frame her case as a question of familial misunderstanding. Instead, the bench held firmly that an adult woman’s right to choose her partner is part of her constitutionally protected autonomy and liberty under Articles 19 and 21, which guarantee free expression and personal liberty.

Importantly, the court rejected the mother’s emotional arguments that D need “rehabilitation.” It cited the Devu G Nair guidelines that court must not recommend counselling when the individual is a consenting adult, and must strictly ensure that their decisions are respected, even if they contradict traditional views of gender and sexuality.

Dignity through choice

Justice Swaminathan’s decision is deeply grounded in a legal philosophy that consistently affirms individual dignity, liberty, and choice. Central to the judgment is the recognition that the right to choose one’s partner is not a cultural preference; it is a constitutional guarantee.

The court cited Shafin Jahan v Asokan K.M [5](2018), where the Supreme Court criticized the Kerala High Court’s annulment of a marriage under a habeas corpus petition, making it clear that courts should not interfere in the personal choices of consenting adults. The emphasis was clear: individual agency must remain protected unless there is clear evidence of something illegal. Although the case involved a heterosexual interfaith couple, its reasoning applies equally to same-sex couples who are asserting their right to choose partners despite family or societal pressure

Similarly, in Asha Ranjan v State of Bihar [6](2017) and Shakti Vahini v Union of India [7](2018), the court reaffirmed that interference with an adult’s choice of partner, whether through social coercion or state action, violates Articles 19 and 21.

This is further strengthened by the rulings in NALSA v Union of India[8] and Navtej Singh Johar v Union of India. In NALSA, the Supreme Court recognized transgender individuals as the “third gender” and held that the right to self-identity as one’s gender was a fundamental aspect of personal autonomy under Article 21. The judgment extended equal protection under Article 14 to transgender persons and mandated affirmative action for their inclusion. It marked the first time that gender identity was judicially protection under the Indian constitution, setting a precedent that gender is not strictly a binary category.

Navtej Singh built on this foundation by striking down Section 377 of the Indian Penal Code to the extent it criminalized consensual sexual conduct between adults in privacy, dignity, and identity. The majority of opinions emphasized that constitutional morality must prevail over social morality, asserting that majoritarian views cannot define the scope of fundamental rights.

These foundational principles strongly resonate with the Madras High Court’s position in the present case, where the detenue’s same-sex relationship was recognized not as a mere personal preference, but as a constitutionally protected expression of identity. By referencing Navtej and NALSA, the high court affirmed that its ruling was not an act of judicial sympathy, but a constitutional necessity.

It rejected the notion that same-sex love requires correction or rehabilitation. Instead, it celebrated the idea that making choices freely and responsibly is the essence of liberty and the Constitution must always protect such expressions, particularly when they challenge majoritarian social expectations.

Constitutional Morality over Social Conditioning

The court’s reference to Navtej and NALSA shows its strong support for the idea of constitutional morality, that the values in the constitution must prevail, even if they go against social norms. The judgment also mentions Justice Leila Seth, one of India’s most respected jurists and a mother who publicly stood by her gay son, writer Vikram Seth. In a heartfelt essay, she responded to the Supreme Court’s 2013 decision that re-criminalized homosexuality, writing: “What makes life meaningful is love. The right that makes us human is the right to love.” [9] The court contrasted this example of acceptance with the detainee’s mother in the present case, who, though well-intentioned, could not come to terms with her daughter’s orientation. In invoking Justice Seth, the court reminded us that dignity and empathy must lead the way, especially when family structures are challenged by evolving identities

This doctrine has been repeatedly reaffirmed in transformative constitutional decisions such as Joseph Shine v. Union of India [10](2018, adultery) and Indian Young Lawyers Association v State of Kerala [11](2018, Sabarimala).

By invoking constitutional morality, the court repositions LGBTQIA+ rights from the margins of acceptability to the centre of constitutional protection. It places the individual, rather than the family or society, as the primary unit of rights-bearing citizenship.  

“Chosen family” expanding the meaning of kinship

One of the most important judicial contributions of the rulings, the court openly acknowledged the validity of queer partnerships and non-traditional kinship structures.

Marriage is not the sole mode to find a family. The concept of a ‘chosen family’ is now well settled and acknowledged in LGBTQIA+ jurisprudence,” the court observed, citing precedents such as Deepika Singh v. CAT[12], Supriyo v Union of India [13](2023), and  Prasanna J. v S. Sushma,[14] which endorsed civil unions through instruments like the “Deed of Familial Association,” a private civil contract recognizing mutual commitment, caregiving duties and cohabitation between partners.

The failing hand of the state

Another key aspect of the judgment was the court’s strong disapproval of how the police handled the case. The petitioner had approached multiple police stations with complaints of D’s illegal detention, but her pleas went unanswered. It was only after the habeas corpus petition was filed that the authorities acted. The court issued a writ of continuing mandamus, an ongoing court order requiring police compliance, directing the police to protect both women, as and when required.

The failure of the police to respond to LGBTQIA+ distress calls is not merely administrative inertia; it is a breach of their constitutional duty to protect all citizens equally. The judgment draws on the Yogyakarta Principles, a set of international soft law principles on sexual orientation and gender identity adopted in 2006, which underscores state obligations to protect individuals regardless of sexual orientation or gender identity.

Reimagining Kinship: chosen family and comparative legal perspectives

One of the most compelling contributions of the Madras High Court’s judgement is its recognition of “chosen families” as a legitimate constitutional entity. It aligns with a growing international understanding of kinship beyond blood or marital ties.

This is not merely a rhetorical gesture. It reflects an emerging legal consensus that family must be understood in plural, inclusive terms. Traditional legal definitions, often limited to marital or blood relations, have proven inadequate in representing the realities of queer lives. By acknowledging that same sex partners who live together and share mutual care and responsibility constitute a family, the judiciary affirms that constitutional protections are not contingent upon formalized institutions like marriage.

The idea of “chosen family” originates from queer communities who, historically excluded from legal and social recognition, created support networks outside of biological ties. These networks serve not only emotional and social needs but also legal and economic functions, ranging from shared tenancy to mutual caregiving.

Comparative legal systems have begun to reflect similar developments. In countries like Canada and the Netherlands, courts have recognized cohabiting same-sex partners as de facto family units, even prior to marriage equality. In Germany and Malta, civil union laws preceded full marriage rights, providing legal recognition for “life partnerships” that were functionally equivalent to family.

In India, while Supriyo, did not grant same-sex marriage legal recognition, it did not deny the capacity of queer individuals to form familial bonds. The Madras High Court’s reference to the “deed of familial association” in Prasanna J. is a significant development. This deed gives partners a way to officially express their commitment, divide household duties, and make healthcare decisions for one another, filling an important gap since same-sex couples currently have no right to marry.

Indian constitutional courts have also recognized broader ideas of what a family can be. In Deepika Singh, the Supreme Court held that families don’t have to follow the traditional mold, unmarried couples and single-parent households deserve the same respect and legal protection as traditional nuclear families. By applying this logic to queer relationships, the judiciary moves towards a more inclusive understanding of family.

 The Madras High Court’s judgement is not only consistent with constitutional doctrine but also aligned with evolving international human rights values and domestic judicial trends. It also echoes what queer communities have long believed: that family isn’t just something we’re born into, it is something we build through love, care, and mutual support.

Towards Institutional Change: The Road Ahead

While this judgment affirms individual freedom and chosen kinship, it also signals areas for future legal and institutional development. The court’s reference to “deed of familial association” opens the door for states to develop legal tools that recognize queer partnership, even without marriage rights. This recognition could guide future work by the Law Commission as it revisits civil union frameworks or broader family law reforms. Just as importantly, the court’s strong rebuke of police inaction underscores the need for real sensitization within the enforcement. Integrating the Yogyakarta Principles into police training, especially the duty to protect against family violence could help ensure that queer voices are heard and not dismissed.

Conclusion

This judgment marks a significant milestone in the evolution of Indian law regarding personal liberty, privacy, and LGBTQIA+ rights. By focusing on individuals’ choice, recognizing same-sex relationships outside of marriage, and calling out police inaction, the court declares: when love is freely chosen, the Constitution protects it.

At times when legislative reforms on same-sex marriage are still pending, judgments like this help keep the ideals of equality and dignity alive for queer communities in India. They also affirm that the judiciary is not just a body that resolves disputes, but one that is capable of compassion, imagination, and courage.

This is not just a win for one couple; it is a reminder that in a constitutional democracy, no identity is too minor, no love too controversial, no matter how unconventional, deserves legal respect and protection.

---

[1] M A v Superintendent of Police & Others , 2025 SCC OnLine Mad 2542.

[2] Navtej Singh Johar v Union of India , (2018) 10 SCC 1.

[3] S Sushma v Commissioner of Police , 2021 SCC OnLine Mad 1452.

[4] Devu G Nair v State of Kerala , 2024 SCC OnLine SC 249.

[5] Shafin Jahan v Asokan K.M, (2018) 16 SCC 368.

[6] Asha Ranjan v State of Bihar, (2017) 4 SCC 397.

[7] Shakti Vahini v Union of India, (2018) 7 SCC 192.

[8] NALSA v Union of India, (2014) 5 SCC 438.

[9] Leila Seth, A Mother and a Judge Speaks Out on Section 377, archived in Vikram Seth, Two Lives (HarperCollins).

[10] Joseph Shine v Union of India , (2019) 3 SCC 39.

[11] Young Lawyers Association v State of Kerala, (2019) 11 SCC 1.

[12] Deepika Singh v Central Administrative Tribunal, 2022 INSC 834.

[13] Supriyo @ Supriya Chakraborty v. Union of India, 2023 INSC 920.

[14] Prasanna J. v S. Sushma

---

Author: Labdhi Sancheti

---