Adults Of Same Sex Have A Right To Live Together Even Outside The Wedlock: Uttarakhand HC [Read Order]

Madhu Bala vs.State of Uttarakhand and Others

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The Uttarakhand High Court recently made an important remark related to the relationship of the homosexual couples to choose their life partner and to live with each other, without any pressure from their parents or the society.

The writ of habeas corpus by Petitioner (female) was filed before Uttarakhand High Court on the ground that the detenue (a person held in custody, a detainee), who is a qualified lady and major, has been wrongfully confined by respondents (her mother and brother) against her wishes.They both has been enjoying a consensual relationship with the petitioner since 2016.

At the first instance detenue accepted about her relationship with the petitioner and expressed her decision to live together with the petitioner, she stated that she is not prepared to go and live with respondents (mother & brother), then she expressed that she has been illegally detained by her mother and brother. However, later the detenue by way of has made a statement that she is not under any pressure by anyone in any manner whatsoever, at the behest of respondents or from anyone else. She has further submitted that she is making the statement consciously and at her freewill, that she wants to lead her independent life and does not want to continue with the consensual relationship with the petitioner, which was alleged in the writ petition to be existing between the petitioner and the detenue since 2016.

While deciding the case Hon’ble Justice Sharad Kumar Sharma, made few important remark related to such type of relationships:

“It was found that the 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 and that is the ”

Further, he also relied on the case Soni Gerry vs. Gerry Douglas[1], and said that the Hon’ble Apex Court in this case provides that 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.

Furthermore, he said that:

“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 and that 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. 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.”

On the basis of the above concept, he agreed that the 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.

However, since detenue made statements before court as well as through affidavit refused to live with the Petitioner and also denied that she has been put in wrongful confinement or has any dangers from the respondents. She further submitted that she is a major and she has got a constitutional right to take her own decision. Therefore, the High Court dismissed the writ of habeas corpus because she refused any wrongful confinement by the respondents.