Cal HC | Freedom of choice with regard to sexual orientation or choice of partner is entrusted under the concept of ‘Constitutional Morality’

Calcutta High Court: The Division Bench of Ravi Krishan Kapur and Joymalya Bagchi, JJ. in their order stated that “self-determination in the matter of sexual preference or consensual intercourse, even if not procreative, is inherent for the enjoyment of life and liberty of every individual and is protected under the scheme of constitutional morality.”

The issue in the present case was that the victim was confined wrongfully by her relatives for the reason that she was under severe trauma and depression. Further, in this regard, the petition had been filed, for which the Court concluded as stated below.

The High Court on perusal of the report stated that Mary Sagarika Biswas is a major and in a fit mental state. From the statement she recorded under Section 164 CrPC, it appeared that she is a lesbian and residing with her partner-petitioner.

Court while referring to the decision of the Supreme Court in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, stated that “consensual cohabitation between two adults of the same sex cannot, in our understanding, be illegal far less a crime.” Hence, in this regard the Court while stressing upon the factors like freedom of choice with regard to sexual orientation or choice of partner along with constitutional morality stated that, the victim who was assessed by psychologists to be of sound and competent mind is entitled to lead her own life as per her own choice in the matter of sexual orientation or preference to a partner unless the same contravenes any law for the time being in force. The writ petition was disposed of with the said order. [Shampa Singha v. State of W.B., 2019 SCC OnLine Cal 153, Order dated 29-01-2019]

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