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?
FACTS OF THE CASE
Madhu Bala and Meenakshi had been in a relationship since 2016. Both parties were majors and were living with each other of their own volition. In this case, Madhu Bala had filed a Habeas Corpus Writ Petition against the mother and brother of Meenakshi, who seem to have wrongfully confined her against her wishes.
DECISION OF THE CASE
a. The Right to be in a Romantic Relationship and to Live Together
First and foremost, the court clarified that it was not illegal for two people of the same sex to be in a romantic relationship and to live together in pursuance of the same. It also stated that the ability of two persons to be in a live-in relationship is not connected to their ability to marry. Even if members of the same sex are not allowed to marry at present, they can continue to live together as a couple outside the wedlock.
b. Article 21 Liberty: The Exclusive Choice of an Individual to Choose a Partner and to Co-Habit with Them
To answer the question of wrongful confinement, the court sought to provide a robust definition of what liberty means. The court stated that liberty was both a human right, and a fundamental right specifically granted by the constitution. The fundamental right of liberty, the court noted, was wide enough to include the right to the choice of a partner, regardless of sex (as also held in the Navtej judgment), and to cohabit with them. In a very crucial statement, the court stated that while social and moral values do have a space in our society, they are not above constitutional rights. Liberty, as a fundamental right guaranteed by the Indian constitution respects the “exclusive choice of an individual”. The court pointed out strongly that the liberty of a person who has attained the age of majority cannot be curtailed so long as they are capable to making a choice for themselves, and adults were entitled to enjoy the freedoms that are permitted to them by the law. It cited the Supreme Court Case of Soni Gerry v. Gerry Douglas (2018) 2 SCC 197, which was a case concerning the custody of an adult daughter. The daughter had stated her intention of where she wanted to live and study, and the court unhesitatingly stated that as she was an adult, her choice had to be honoured by the law. In the words of the court,
In continuation of this logic, the court stated that its jurisdiction cannot extend to determining the suitability of a partner chosen by an individual. This is an area of decision making the court stated is outside the realm of State interference as well. Even the society cannot interfere in this matter. The court stated that the strength of the Indian constitution lays in the acceptance of a pluralistic and diverse culture. The choices of whether to marry in the first place, and whom to marry are choices which are exclusive to an individual and the State and the society cannot interfere in these decisions. The court also stated that it is under a duty to ensure that these constitutional liberties of individuals are not flouted by the State and society.
“It needs no special emphasis that attaining the age of majority in an individual’s life has its own significance. She/he is entitled to make her/his own choice. The courts cannot, as long as the choice remains, assume the role of parens 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 sentiment of the mother or egotism of the father. We say so without any reservation.”
c. The Recorded Statement of the Detenue and the Obligation of the Police to Ward off Untoward Marriage Pressure exercised by Family
The court stated that in deciding these cases, it is exclusively the recorded statement of the detenue before the court that will dictate the decision. In a recorded statement before the court, Meenakshi had deposed that she was being illegally detained by her mother and brother, and that she, of her own volition would like to continue her relationship with Madhu Bala. She also mentioned that she was being pressurized by her mother and brother to marry a man. In a previous order from the same case, the court also placed an obligation on the police to ensure that no untoward pressure is exerted on Meenakshi in this regard, even from her family.
d. Court Contradicting its Own Ruling that Individual Will is the Most Important Factor in Deciding Such Cases
However, that statement was made in the absence of the mother and the brother. The court noted that the case could not be decided in their absence since the allegation of wrongful confinement had been made against them. Notices were issued to them and they presented themselves in a subsequent hearing. In that hearing, Meenakshi retracted her previous statement and stated that she would like to reside in her parent’s home, and that she was not wrongfully confined there. She also stated that she no longer wished to continue her relationship Madhu Bala. The difference between these two statements was that during the first statement, the mother and brother of the detenue were not present whereas in the second statement, these persons were present. The first statement was recorded on the 27th of May, 2020 whereas the second statement was recorded on the 8th of June, 2020. It is important to ask the question, of where was Meenakshi in this interim period? Where was she staying, and could this have played a role in her changing her mind? Indeed, if the court so decisively states that the all that matters is the recorded statement of the detenue, why did it not accept the statement of the 27th of May? Why was it important to hear the responses of the mother and the brother in this case? Could they have presented any reason which would have superseded the fundamental right of the detenue to decide where she wants to live?
As discussed in a previous blog, the case of Monu Rajput v. State was of a similar nature. Two proceedings took place in that case. First a wrongful confinement case was filed against Monu alleging that he had wrongfully confined Ms. Maneesha. In this case, Ms. Maneesha’s statement was taken as per the procedure in S. 164 of the Code of Criminal Procedure. Ms. Maneesha deposed that she would like to live with her parents and she was released to their custody. It is not mentioned in that case the Monu was present or given notice to rebut the statement/allegation of wrongful confinement against him. Her statement was enough to settle the matter. However, when in a subsequent case, Monu filed a writ petition against the father of Ms. Maneesha alleging wrongful confinement, Maneesha’s statement that she wanted to live with Monu was not considered sufficient to settle the matter, because the father was not present in court. Ms. Maneesha initially deposed that she wanted to stay with Monu but changed her statement in the presence of her father. If the wrongful confinement case against Monu, he was not given a chance to rebut the allegation, why was a chance given to the father in this case to rebut the allegation?
Arguably this reflects the deep seated paternalism and homophobia of the legal system that it does not seriously enforce the entitlement of adult women to take their own decisions. Their decisions are only considered legitimate when made in the presence of a family member. Since the Navtej Johar judgment, there have been 4 reported cases on queer persons in live-in relationships. All of these cases have attracted the same kind of legal challenges i.e. that of wrongful confinement. In two cases, the judgment does not mention whether there had been any contradictory statements in the absence of the family, which has now changed in the presence of the family. However, in the remaining two of these cases, the subject of the wrongful confinement has changed her earlier statement to want to stay with her partner, in the presence of her family members, and decided to stay with the family instead.
The legal community including the courts need to come up with principled way to deal with these cases. If the most important factor is the statement of the detenue, then the decision needs to be made on that factor alone. Nothing more should be needed. However, if the question is about giving notice to all parties involved in the litigation then notice should be given to the partners of these detenues as well when the wrongful confinement cases are decided and the statements of the detenue in the absence of their partner should be considered as deficient as her statement in the absence of her family members. Finally, if the court has any concerns about the voluntariness of the statement then there are already safeguards built into the law to ensure this does not occur. However, in the light of additional concerns, the court must provide guidelines that do not unequally privilege the family of the detenue.
 This right for same sex couples was first acknowledged in the Sreeja case at a High Court level.