It Is Neither Illegal Nor A Crime: Kerala HC Allows Lesbian Couple To Live-in Together [Read Judgment]

‘This court cannot find that the 'live-in relationship' between the petitioner and the alleged detenue will in any manner offend any provisions of law or it will become a crime in any manner.’

Weeks after the Supreme Court decriminalised homosexuality, the Kerala High Court has allowed a plea of the lesbian live-in couple to live together.

A division bench of Justice CK Abdul Rehim and Justice R. Narayana Pisharadi observed that such live-in relationship between lesbian couple is neither a crime nor illegal.

Sreeja and Aruna intended to live together as life partners. Sreeja approached the high court by filing a habeas corpus petition alleging that Aruna has been admitted to a mental hospital by her parents and that the hospital authorities were insisting for the production of a court order for her release along with her.

Aruna was produced before the high court bench which interacted with her. She told the bench that she would like to go with Sreeja.

The bench then considered the legal issue whether she can be permitted to go along with Sreeja to lead a 'live-in relationship', because both of them belong to the same gender, and could not solemnize a valid marriage between them.

The bench referred to some other recent judgments of the Supreme Court on the subject, apart from the constitution bench judgment in Navtej Singh Johar. 1) Nandakumar and Another vs. State of Kerala which set aside a Kerala High Court order that ‘entrusted custody’ of a major girl to her father, observing that she has freedom of choice as to with whom she wants to live. 2) Shafin Jahan vs. Asokan that set aside Kerala HC judgment which annulled the marriage between Shafin Jahan and Hadiya.

It also quotes this observation from Sony Gerry vs. Gerry Douglas: It needs no special emphasis to state that attaining the age of majority in an individual's life has its own significance. She/he is entitled to make her/his choice. The Courts cannot, as long as the choice remains, assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the Court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation.   

Referring to these judgments, the bench said: “Based on principles enumerated as above, this court cannot find that the 'live-in relationship' between the petitioner and the alleged detenue will in any manner offend any provisions of law or it will become a crime in any manner. On the other hand, if the jurisdiction vested on this court is not exercised, it will amount to permitting a violation of the Constitutional right to perpetrate.”

The bench then allowed Aruna to go along with Sreeja.