"Take This Immoral Thing Back": Punjab & Haryana High Court Judge On Habeas Corpus Plea Moved By Woman In Same-Sex Relationship

Responding to a habeas corpus petition filed by a woman claiming to be in a same-sex relationship, Justice Pankaj Jain of the Punjab and Haryana High Court said that he doesn't believe that morality and constitutionality are different.

He inquired in what capacity the Petitioner could represent the alleged detenu and on being informed that it's a case involving a "queer couple", orally remarked, "Take this immoral thing back to where it came from."

"I don't prescribe to the theory that constitutionality and morality are different," Justice Jain added and the next matter was called.

The matter was listed before the bench of Justice Jain as the roster judge seized with the case was on leave today. It will now be listed before Justice Sandeep Moudgil.

Petitioner alleges that her partner has been unlawfully detained by the said partner's family who is opposed to their relationship. She claimed that a Police officer had slapped her when she approached the force for protection.

Previously, Justice Moudgil's bench had flagged production of two Aadhar Cards in the alleged detenu's name. One of the Aadhar cards was produced by the Petitioner, reflecting alleged detenu's date of birth as 15th June, 2004. The other was produced by alleged detenu's parents, showing her to be born on 15th June, 2007. The document is essential to determine whether the alleged detenu has attained majority or not. If the alleged detenue is found to be a minor, the Court will have to test the maintainability of the petition qua Petitioner's capacity to seek her production.

It is citing this issue that Justice Jain passed an order later in the day. The order was not dictated in open Court and was only uploaded in the evening. He said the Petitioner was unable to produce any material to demonstrate that she can act as the 'next best friend' of the detenue.

"How the petitioner has assumed the role of the next best friend of the alleged detenue who belongs to District Unnao, Uttar Pradesh," Justice Jain wondered and directed the matter be listed before regular bench.

It is pertinent to note that the Supreme Court refrained from granting legal recognition for same-sex marriages, however it directed the State to take steps to end the discrimination faced by queer couples and to ensure protection for their right to cohabitation.

The Punjab & Haryana High Court had earlier granted protection to a lesbian couple stating that Article 21 of the Constitution of India does not cease to apply when people of the same gender decide to live together.

The matter is now listed on January 15.

Case Title: X v State of Haryana & Ors.

Advocate for the petitioner Amrita Garg

Gaurav Bansal, DAG, Haryana with ASI Anand Parkash and LHC Sunita Babli.

Varun Issar, Senior Panel Counsel for UIDAI.

Sanjay Jain, Legal Aid Counsel for respondents No.4 and 5.