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Same-sex couples have got a right to live together, even if not competent to enter into wedlock: Uttarakhand HC

The High Court, however, dismissed the plea filed by a woman alleging the illegal detention of her former partner by family, after the allegedly detained woman told the Court that she was not being wrongfully confined.

Aishwarya Iyer

The Uttarakhand High Court was recently prompted to reiterate that consensual cohabitation by a same-sex couple is not illegal or a crime, while dealing with a habeas corpus plea filed by a woman claiming that her partner was being illegally detained by family (Madhu Bala v State of Uttarakhand and Others)

The Court, however, dismissed the plea after the alleged detenue herself told the Court that she was not under any pressure or wrongful confinement by her mother and brother.

Justice Sharad Kumar Sharma observed that it was a settled legal preposition that a consensual relationship between a common sex is not barred and it is held not to be an offence under the law.

He added, "the continuance of a consensual relationship between the persons belonging to the same sex is not in debate in the present writ petition anymore at present."

As far as live-in relationships between consenting adults were concerned, the High Court went on to quote the judgment of the Supreme Court as rendered in Soni Gerry vs. Gerry Douglas wherein it was 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.”

In this backdrop, Justice Sharma noted even if persons are not competent to enter into wedlock, they have a right to live together even outside the wedlock.

"In view of the aforesaid dictum of the Hon’ble Apex Court (Gerry v. Douglas) it 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."
Uttarakhand High Court

The Court added, "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 High Court further observed that though social values and morals have their space, but they are not above the constitutional guarantee of freedom assigned to a citizen of a country. Morerover, the Court said,

"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."
Uttarakhand High Court

In the present case, however, the Court found that the petitioner's partner (detenue), claimed to have been forcibly detained, was residing of her own will with her mother and brother.

The detenue appeared before the High Court on three days i.e, on May 27, June 8 and June 12.

On May 27, the detenue conceded that she had been in a relationship with the petitioner and expressed her decision to live together with the petitioner, adding that she was not prepared to go and live with her family.

However, on June 8, the detenue submitted that her earlier statement was given under some misnotions. Hence, she withdrew the earlier statement. She had further submitted that her mother and brother were not pressuring her to do any act against her wishes.

On June 12, while appearing before the Court, the detenue reiterated her second statement that she did not want to continue her consensual relationship with the petitioner, that has been existing since 2016.

Given that the detenue had herself submitted that she was not under any wrongful confinement, the Court was of the opinion that the writ of habeas corpus was not tenable. Accordingly, the habeas corpus petition was dismissed.

Read the Order here:

Madhu Bala v State of Uttarakhand and Others.pdf
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