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Madhu Bala v. State of Uttarakhand and Others Habeas Corpus Petition No. 8 of 2020

FACTS OF THE CASE

On the 12th of June, 2020, a single judge bench of the Uttarakhand High Court reiterated the legal position that a consensual relationship between persons of the same sex is not barred by law. This was a case of a live-in-relationship between two women, whose relationship was once again, openly acknowledged in court. In a previous blog, I had discussed that the open acknowledgment in court of a romantic relationship between two women was certainly something new to be seen after the Navtej Judgment in 2018. The first case to do so was Sreeja S. v. Comm. of Police, decided a few weeks after the Navtej Johar case. The present case follows in this line of cases. In this blog post I will demonstrate that the court makes remarkably strong theoretical points about the meaning of the fundamental right to liberty, which it equates with the exclusive right of an adult individual to decide with whom they want to live (among other things). However, the court severely waters down this right in application in this case. They do not implement the declaration made by one of the women in the relationship that she wants to continue to live with her partner because she makes this statement in the absence of her family. This raises the question: is this because of the deep-seated paternalism and homophobia of the legal system, or is it because the legal procedure requires the presence of her family members in this case. Even if this is the case, does the procedure itself suffer from paternalism and homophobia?

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