Cannot curtail an Adult’s Constitutional Freedom, Kerala HC allows 23 y/o to live with Lesbian Partner
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Cannot curtail an Adult’s Constitutional Freedom, Kerala HC allows 23 y/o to live with Lesbian Partner

Meera Emmanuel

The Kerala High Court recently came to the rescue of a lesbian couple in aiding their choice to live together, while reiterating that subjective morals cannot supersede Constitutional freedoms guaranteed to adult citizens.

The Bench of Justices CK Abdul Rehim and R Narayana Pisharadi passed the order in a Habeas Corpus plea against the forced detention of a 23-year-old woman by her parents on coming to know of her plans to live with her partner.

Justice CK Abdul Rehim (Left) and Justice R Narayana Pisharadi (Right)
Justice CK Abdul Rehim (Left) and Justice R Narayana Pisharadi (Right)

After the registration of a police complaint last August, the detenue-woman was eventually ordered to be released by a Magistrate court. However, her parents then took her to a mental hospital, which refused to set her free without a court order.

Her partner (petitioner), therefore, approached the High Court seeking issuance of Habeas Corpus writ to set the detenue free. The Court was informed that even when the petitioner visited the detenue at the mental hospital, she had expressed her wish to go with the petitioner.

In these circumstances, the High Court did not take long to decide in favour of the petitioner, proceeding to order the release of the detenue.

Apart from pointing out that same-sex relationships are now Constitutionally protected after the Navtej Johar judgment, the Bench took the opportunity to emphasise that on attaining the age of majority, a person’s liberty cannot be curtailed.

In this regard, it cited the case of Soni Gerry v Gerry Douglas, wherein it was observed that on attaining the age of majority, a person is entitled to make his/her choice. Further, it had been observed that the Courts cannot assume the role of parens patriae as long as the choice remains.

With specific reference to choosing a live-in relationship, it was noted that the Supreme Court has already held that persons are not prohibited from opting for such relationships, even if they are not competent to enter into a wedlock.

Ultimately, the Hadiya case was cited to emphasise that the Court’s only role in such matters is to ensure that the individual choice of the adult citizen is respected.

It observed,

What is seminal is to remember that the song of liberty is sung with sincerity and the choice of an individual is appositely respected and conferred its esteemed status as the Constitution guarantees. It was found [in Hadiya’s case] that, the social values and morals have their space, but they are not above the constitutionally guaranteed freedom… Courts as upholders of constitutional freedom must safeguard these freedoms.

Therefore, the Court allowed the Habeas Corpus plea and allowed the detenue to go with the petitioner, as she wished, after noting,

“... this court cannot find that the ‘live-in relationship’ between the petitioner and the alleged detenue will in any manner offend any provisions of law or it will become a crime in any manner. On the other hand, if the jurisdiction vested on this court is not exercised, it will amount to permitting a violation of the Constitutional right to perpetrate.

Read the Judgment below. 

Kerala-HC-Sreeja-v-Commissioner-of-Police.pdf
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