Consensual Cohabitation Between Two Adults Of Same Sex Not Illegal; They Have A Right To Live Together Even Outside The Wedlock: Uttarakhand HC [Read Order]

The Uttarakhand High Court recently made significant remarks with respect to the rights of adult homosexual couples to choose their life partner and to live with each other, without any pressure from their parents or the society.

"Consensual cohabitation between two adults of the same sex cannot in our understanding be illegal far or less a crime because its a fundamental right which is being guaranteed to the person under article 21 of the Constitution of India, which inheres within its ambit and it is wide enough in its amplitude to protect an inherent right of self determination with regards to one's identity and freedom of choice with regards to the sexual orientation of choice of the partner," Justice Sharad Kumar Sharma observed.

The remarks were made by the court while hearing a habeas corpus writ petition, filed by one Madhu Bala, against illegal confinement of her alleged partner Meenakshi, by Meenakshi's mother and brother.

Though the petition came to be dismissed on account of Meenakshi's reluctance to continue her alleged relationship with the Petitioner however, the court made significant remarks with respect to rights of homosexual couples, where they want to live together.

"Even if the parties, who are living together though they are belonging to the same gender; they are not competent to enter into a wedlock, but still they have got a right to live together even outside the wedlock. It would further be not out of pretext to mention that a live-in relationship has now being recognized by the legislature itself, which has found its place under the provisions of protection of women from Domestic Violence Act," the bench held.

The bench further remarked that while deciding cases such as the instant one, the court should not engage itself in social mores. It held that right to liberty and freedom of choice are "constitutional values" that cannot be abridged.

"…Social values and morals they do have their space, but they are not above the constitutional guarantee of freedom assigned to a citizen of a country. This freedom is both a constitutional as well as a human right. Hence, the said freedom and the exercise of jurisdiction in a writ courts should not transgress into an area of determining the suitability of a partner to a marital life, that decision exclusively rests with the individual themselves that the State, society or even the court cannot intrude into the domain."

The court added,

"[It] is the strength provided by our constitution, which lies in its acceptance of plurality and diversity of the culture. Intimacy of marriage, including the choice of partner, which individual make, on whether or not to marry and whom to marry are the aspects which exclusively lies outside the control of the State or the Society."

Reliance was placed on the following observations made by the Supreme Court in Soni Gerry v. Gerry Douglas, AIR 2018 SC 346,

"it needs no special emphasis to state that attaining the age of majority in an individual's life has its own significance. He or she is entitled to make his or her choice. The court can, so long as the choice remains, assume the role of parnis patriae. The daughter is entitled to enjoy her freedom as the law permits and the courts shall not assume the role of a super guardian being moved by any kind of sentiments of the mother or egotism of the father. We say so without any reservations."

Thereby the court concluded that in cases such as the instant one, it has to proceed "exclusively" on the basis of the detenu's statement.

"The court as an upholder of the constitutional freedom has to safeguard that such a relationship where there is a choice exclusively vested with a major person has to be honoured by the courts depending upon the statements recorded by the individual before the court.

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In such type of circumstances it is exclusively the statement recorded of the detenue, who is said to be wrongfully/illegaly confined and who is said to be having a consensual or a lesbian relationship with the petitioner, which becomes of a prime importance, to be considered while parting with the judgment," the court said.

In the present case, the detenu expressed her unwillingness to live with the Petitioner and submitted that the Respondents, i.e., her mother and brother did not put any pressure upon her.

The court dismissed the petition thus,

"In view of the aforesaid statements and affidavit on record, this habeas corpus petition is dismissed; because of the statement recorded by the detenue herself before this Court today, that she is not under pressure or a wrongful confinement of respondent nos. 4 and 5. Thus, there could not be any writ of habeas corpus."

Petitioner was represented by Advocate Abhijay Negi; State was represented by Deputy Advocate General Sandeep Tandon with Mamta Joshi and Private Respondents by Advocate Jayvardhan Kandpal.

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