Consensual cohabitation between same sex not a crime: Uttarakhand HC

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Justice Sharad Kumar at the Uttarakhand High Court observed that Consensual cohabitation between two adults of the same sex cannot in our understanding be illegal far or less 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.

The Habeas corpus petition was filed by one Madhubala alleging that her alleged partner Minakshi was kept under illegal confinement by Meenakshi’s mother and brother.

Relying on AIR 2018 SC 346 ‘Soni Gerry vs. Gerry Douglas’, wherein, the Hon’ble Apex Court has observed that “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.”

That 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 the rights of homosexual couples, where they want to live together.

The court observed that “Even if the parties, who are living together though they are belonging to the same gender; they are not competent to enter into 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 court observed that social values are not above one’s fundamental right.

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

The court relied on the statement of detenue on affidavit wherein the detenue 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.

Advocate Abhijay Negi appeared for the petitioner and Deputy Advocate General Sandeep Tandon Represented The State.

[Read order]

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