On 12 June 2020, the Uttarakhand High Court observed in the case of Madhu Bala v. State of Uttarakhand and Others (Habeas Corpus Petition No. 8 of 2020) that consensual cohabitation between two adults of the same-sex is legal. Amidst the coronavirus pandemic, it can be said that a ray of hope has been provided to all same-sex couples fighting for their fundamental right to personal autonomy. Moreover, this verdict can be seen as a stepping stone towards legalising same-sex marriages in India. 

JUDGMENT OVERVIEW

The petitioner (Madhu Bala) alleged that her partner was wrongfully detained by her relatives, despite their consensual live-in relationship. The court affirmed that the right to consensual cohabitation was within the confines of Article 21 of the Constitution of India. The bench righteously remarked that the Constitution protects a variety of fundamental rights in its amplitude, which includes the right to self-determination with regards to one’s gender identity and the freedom to choose one’s partner, irrespective of sexual orientation. However, the petition was ultimately dismissed after the petitioner’s partner declared that she was not kept under illegal confinement. 

The reasoning of the court in this case can be said to follow the principles of the landmark judgment that decriminalised homosexuality in India in 2018. The doctrine of self-determination was itself laid down in NALSA v. Union of India, which is known for recognising the existence of a third gender outside the male-female binary. 

The decision also followed the rightful path of KS Puttaswamy v. Union of India by affirming the legal guarantee of the right to privacy. Reliance was additionally put on Soni Gerry v. Gerry Douglas in re-affirming the spirit of individuality. It was emphasised that the freedom to choose automatically extends to choosing one’s own partner. 

THE WAY FORWARD FOR SAME-SEX MARRIAGES 

This verdict can be used as a basis to dispel arguments against same-sex marriages. The legitimacy of same-sex marriages is a controversial issue, particularly within conservative Indian society. 

The parties who oppose same-sex marriages refer to the sanctity of the institution of marriage. Marriage is primarily considered an institution between men and women, which functions on family-based (and gendered) relations sanctified through different rituals, customs, and laws. However, this social sanctification does not change the principle that the right to marry stems from individual autonomy, rather than social conformity or acceptance. The refusal to legalise same-sex marriage leads to a violation of the principles of equality, dignity, and freedom that are guaranteed by the Constitution. It also leads to the violation of a plethora of other rights, such as adoption, maintenance, and a joint-bank account. Therefore, it is about time that the intimacy of marriage is placed outside the control of the state or society. 

Furthermore, recent developments in the international arena have pushed for further evaluation of India’s social morality. On 26 May 2020, Costa Rica affirmed marriage equality in its democratic regime. Costa Rica’s decision has attracted praise because it managed to uphold the principle of equality despite flared opposition from the legislative assembly and the Catholic Church. 

India has seen a progressive wave of judgments, all reinstating the fundamental rights of the LGBTQIA+ community. The verdict of Madhu Bala v. State of Uttarakhand and Others joins this line and contributes in its unique way, by re-affirming what should be obvious – namely, that same-sex couples should have the freedom to cohabit. Such passing comments made by the bench can contribute significantly to change the mainstream narrative. Importantly, this ruling inculcates hope that India will one day join the list of countries that have legalised same-sex marriages. 

Sonal is studying law at National Law University, Delhi. Her research interests include gender-based violence, feminist theories and LGBT+ rights.

LinkedIn