Kerala High Court: A Division bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. while hearing a habeas corpus petition filed by the partner of a lesbian held that persons of the same gender are entitled to be in a live-in relationship.

The present petition seeking a writ of habeas corpus was filed by the petitioner alleging that her lesbian partner, Ms Aruna, had been illegally confined by her parents against her free will. The detenue had informed the petitioner that her parents had admitted her in a mental hospital. When the petitioner went to meet her in the said hospital, she was ready and willing to come along with her but the hospital authorities insisted for production of a court order to release the detenue.

The question before the court was whether the detenue could be permitted to go along with the petitioner to lead a live-in relationship because both of them belonged to the same gender and could not solemnize a valid marriage between them.

At the outset, the Bench relied on the judgment of Apex Court in Soni Gerry v. Gerry Douglas, (2018) 2 SCC 197 and observed that the court cannot assume the role of parens patriae and curtail the liberty of a person who has attained the age of majority.

Shafin Jahan v. Asokan, 2018 SCC OnLine SC 343 was relied on to note that in habeas corpus petitions the role of Court is to find out the independent choice of detenue and in exercising its jurisdiction, caution must be exercised to not transgress into the area of determining the suitability of partners to a marital life.

The Bench observed that the Apex Court in the case of Nandakumar v. State of Kerala, 2018 SCC OnLine SC 492 had clearly held that even if parties are not competent to enter into wedlock, they have the right to live together even outside the wedlock.

Lastly, the Bench noted down observations in the case of Navtej Singh Johar v. Union of India, 2018 SCC OnLine SC 1350stating that discrimination on the basis of one’s sexual orientation is violative of the fundamental right to freedom of expression and constitutional morality cannot be martyred at the altar of social morality.

On the strength of principles enumerated in the aforesaid pronouncements of Supreme Court, the Bench held that live-in relationship between petitioner and the detenue would not offend any provision of the law and directed the detenue to be set at liberty to go along with the petitioner, as desired by her. [Sreeja S. v. Commissioner of Police, 2018 SCC OnLine Ker 3578, decided on 24-09-2018]

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