Consensual Cohabitation of two adults of the same sex not illegal

Ukkash F | Sastra School of Law, Tamil Nadu | 19th June 2020

Madhu Bala Vs. State of Uttarakhand and Others 

FACTS OF THE CASE

The Uttarakhand HC made landmark remarks on the rights of the individuals who are homosexual couples to live together and choose a partner without any pressure from society.

The petition is through Habeas corpus where Meenakshi, the petitioner’s wife, was illegally confined by her mother and her brother.

The petitioner relied on the case Soni Gerry vs Gerry Douglas where it was observed that,

“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 sentiments of the mother or egotism of the father. We say so without any reservations”.

Meenakshi stated to the Court that she voluntarily on her own volition wants to continue her relationship with Madhu Bala, i.e. the petitioner. Now the case is in scrutiny in the High Court since Meenakshi, and the detenue is under illegal confinement against her free will at her parental home.

ISSUE

1. Whether the illegal confinement of Meenakshi is justifiable? 

COURT’S OBSERVATION

The petitioner submits that the illegal confinement of an adult Meenakshi is against the constitutional right of her. 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.

Nevertheless, to the Surprise, in the video conferencing hearing, Meenakshi has stated that she wants to lead her independent life and does not want to continue with the consensual relationship with the petitioner, which was alleged in the writ petition to be existing between the petitioner and the detenue Meenakshi since 2016. She has wholly contradicted her statements in the first hearing and the recording of the police officials.

The Court after the hearing has observed that Meenakshi is an adult and she is entitled to make her own independent decisions. Since she has given statement that she is not under wrongful confinement at home and she does not want to live together with the petitioner, Meenakshi has the right to make her own decisions even though she has given wholly contradicting statements during the hearing of the petition. It was observed,

“The detenue Meenakshi is free to make her own decision and to carry her own life, since she being a major has been ensured with a constitutional right, to lead her independent life in the manner she desires, no one can legally dictate terms to her including her parents, as to how she has to lead her life”.

CONCLUSION

Further, it is pertinent to note that the HC has also observed that the consensual cohabitation of two individuals of the same sex who are couples has a constitutional right under article 21 which 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 Court observed that, 

“Itis 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 individually 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.“