The Hon’ble High Court of Uttarakhand on 12.06.2020 pronounced a commendable judgement holding that consensual cohabitation between two adults of the same sex is not illegal or a crime.
The Hon’ble High Court pronounced the said judgement in response to a writ petition filed by Ms. Madhu Bala seeking a writ of habeas corpus on grounds of her partner Ms. Meenakshi, a qualified adult lady, being wrongfully confined by her mother and brother (Respondent 4 and 5) on account of her being involved in a consensual relationship with the Petitioner.
As per the petition, Ms. Meenakshi and the Petitioner were in a consensual relationship as a result of which, Ms. Meenakshi was wrongfully detained by her own mother and brother.
The Petitioner raised a question before the Hon’ble High Court asking whether two adult persons of the same gender could be permitted to be in a consensual relationship and whether they can be permitted to live together.
Taking note of the above question, Justice Sharad Kumar Sharma stressed on the fact that consensual cohabitation between two adults of the same sex was in no way illegal, further calling the right to choose one’s identity and freedom of choice in terms of sexual orientation of one’s partner to be a fundamental right under Article 21 of the Indian Constitution.
Further stating that although having their own space in society, social and moral values are not above the constitutional right of a citizen, Justice Sharad Kumar Sharma held as follows, “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 court 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.”
The Hon’ble High Court then stated that according to the first statement recorded on 27.05.2020, Ms. Meenakshi expressed her willingness to stay in a consensual relationship with the Petitioner, but as per the present statement recorded on 08.06.2020, Ms. Meenakshi clearly negated the earlier statement made by her, revealing that she had made the former statement under some mis-notion. She further stated in the present statement that she wishes to live an independent life and does not want to continue the relationship with the Petitioner which was alleged in the writ petition to be existing since 2016.
Considering the present statement made by the detenu as per which she is neither wrongfully confined by the Respondents nor does she wishes to continue her relationship with the Petitioner, the Hon’ble High Court dismissed the habeas corpus writ petition.