Uttarakhand High court recently gave its judgement with respect to the rights of adult homosexual couples to choose their life partners and to live with each other, without any pressure from their parents and society.
“Consesual cohabitation between two adults of the same sex cannot in our understanding be illegal far or lessa crime because its a fundamental right which is being guaranteed to a person under article 21 of the Constitution of India, which inheres within its ambit and it is wide enough in its amplitude t protect and inerent right of self determination with regragds 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 listening to the petition of habeas corpus filed by Madhu Bala, against illegal confinement of her alleged partner Meenakshi, by Mennakshi’s mother and brother.
However the petition was dismissed on account of Meenakshi’s reluctance to continue her alleged relationship with the Petitioner. After then court made a remarkable decision on rights of homosexual couples, where they want to live together.
“Even if the parties who are living together though they belong to the same gender; they are 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 been recognized by the legislature itself, which found its place under the provisions of Protection of women from Domestic Violence Act” the bench held.
The court further held that while deciding the case 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 Value” 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 constitutional as well as a human right. Hence, the said freedom and an 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 further added
That 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 lie outside the control of the State or the Society.”
Reliance was made on the observations by the Hon’ble Supreme Court in a case of Soni Gerri Vs Gerri 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 own 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 he 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 present 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 statement recorded by the individual before the court.”
In the above mentioned circumesntances it is exclusively the statement recorded of the detenue, who is said to be wrongfully confined and who is said to be having consensual or a lesbian relationship with the petitioner, which becomes of a prime importance, to be considered while parting with the judgement. Court said.
In the present case detenu showed his unwillingness to live with the Petitioner and submitted that the respondents, i.e. her mother and brother did not put any pressure upon her.
Thus the court after listening to the parties dismissed the petition by saying that-
“In view of the aforesaid statements and affidavit on record, this habeas corpus petition is dismissed, because of the statement recorded by the detenu herself before this court today, that she is not under pressure or a wrongful confinement of respondent no 4 and 5. Thus there could not be any writ of habeas corpus.”