Choices Of Sexual Preference Protected Under The Scheme Of Constitutional Morality: Calcutta HC

Choices Of Sexual Preference Protected Under The Scheme Of Constitutional Morality: Calcutta HC

"We are of the view that such 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 our scheme of constitutional morality and cannot be whittled down on the concept of morality or religion of others."

The Calcutta High Court observed that consensual cohabitation between two adults of the same sex cannot be termed as illegal.

The bench comprising Justice Joymalya Bagchi and Justice Ravi Krishan Kapur observed thus while disposing a habeas corpus petition filed by one woman (X) who alleged that her lesbian partner (Y) is under illegal confinement.

X had approached the High Court by filing a Habeas Corpus Petition contending that she has an amorous relationship with Y. She alleged that, as Y's mother and relatives did not like such a relationship, they wrongfully confined her against her will.

In response to this plea, the relatives contended that Y was under an 'unholy influence' of X and was suffering from severe trauma and depression. The state also filed report stating that Y had been medically treated in a hospital and was in a rehabilitation centre. The bench had then constituted a Medical Board of three Psychiatrists to assess the mental state of Y.

Last week, the bench perused the report filed by the Medical board which stated that Y is a major lady and is in a fit mental state. The bench also noted that she has stated before the Magistrate that she is a lesbian and was residing with her partner. She further stated that she is presently inclined to stay with her mother.

She has freedom to choose her partner of any gender without being influenced by any person or authority in that regard, said the bench taking note of the judgment of the Supreme Court in Navtej Singh Johar Vs. Union of India wherein it was declared that consensual cohabitation or carnal intercourse between two consenting adults of the same sex does not fall within the penal ambit of Section 377 of the Indian Penal Code. The bench further observed:

"Consensual cohabitation between two adults of the same sex cannot, in our understanding, be illegal far less a crime. Fundamental right to life under Article 21 of the Constitution of India inheres within its wide amplitude an inherent right of self-determination with regard to one's identity and freedom of choice with regard to sexual orientation or choice of partner. We are of the view that such 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 our scheme of constitutional morality and cannot be whittled down on the concept of morality or religion of others."

The bench then disposed of the petition holding that Y would be 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.


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