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The Calcutta High Court held that consensual cohabitation between two adults of the same sex cannot be defined as illegal. This was observed by a bench led by Justice Joymalya Bagchi and Justice Ravi Krishan Kapur while disposing of a habeas corpus petition filed by a woman (X) who claimed that her lesbian partner (Y) was in illegal confinement. X had filed the writ petition in the High Court and she claimed to have a love affair with Y. She alleged that because Y's mother and relatives did not like that relationship, they illegally and unfairly restricted her movements within the confines of her home without her consent and against her will. The relatives’ contention was that Y was under the impious influence of X and suffered from severe trauma and depression. The State also filed a report indicating that Y had received treatment in a hospital and was in a rehabilitation centre. Therefore, the bench had established a Medical Board composed of three Psychiatrists to determine the mental condition of Y.
The report made by the Medical Board was persuaded by the bench last week. It stated that Y has attained majority and she is a woman in a fit mental condition. It was also noted that she told the Magistrate that she is a lesbian and that she is cohabitating with her partner. She also stated that she is currently inclined to stay with her mother. Citing the judgment of the Supreme Court in Navtej Singh Johar Vs. Union of India, the bench observed that she has the freedom to choose her partner of any sex without being influenced by any person or authority in this regard. In the Supreme Court judgment of 2018, the apex court declared that consensual cohabitation or sexual intercourse between two consenting adults of the same sex is not within the scope of Article 377 of the Indian Penal Code, 1860. This landmark judgment decriminalised homosexual sex between consenting adults.
The Bench further mentioned that it is not an offence in the eyes of law and consensual cohabitation between two consenting adults of the same sex cannot be termed as illegal. The Fundamental right to Life according to Article 21 of the Constitution of India contains within its wide scope an inherent right to self-determination about identity and freedom of choice with respect to sexual orientation or the choice of the partner. Such self-determination in matters of sexual preference or consensual relationship, even if it is not procreative, is inherent in the enjoyment of life and the freedom of each individual and is protected by our constitutional morality scheme. This inherent right cannot be curtailed on the ground of morality or religion of others. Having said so, the bench disposed of the instant writ petition stating that Y would have the right to lead her own life according to her own choice in matters of sexual orientation or preference for a partner, unless the same, for the time being in force, contravenes any law or is injurious to public morality.
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