There can be no fetters imposed on the right of an adult woman to reside with whosoever she desires, the Delhi High Court has said, while allowing a married woman to live with a 36-year-old woman she wants to be in a relationship with.
A bench of Justice Siddharth Mridul and Justice Sangita Dhingra Sehgal observed that the “expression of the woman’s choice to reside with her friend is strictly within the ambit of inalienable human and fundamental rights that she is entitled to as part and parcel of the basic freedoms enshrined, guaranteed and protected by the Constitution of India”.
The 36-year-old had approached the High Court following the Supreme Court’s judgment last year, which held that consensual sex between two adults, regardless of their gender, is not a crime.
She had alleged that her partner had been illegally confined by her parents and husband. She further said she was concerned about the safety and security of her friend.
Besides seeking direction that her partner not be taken out of Delhi, the woman had sought police protection for both of them.
The 36-year-old’s partner had married a Delhi resident in 2016, but left her matrimonial home in October last year, following which the two women moved in together.
The husband then lodged a missing persons report with the police, following which his wife went to the police station to record her statement and said she had left her matrimonial home of her own accord. The court then sought presence of the woman, her father, mother and husband.
The bench noted that the “parents of (the married woman) are concerned not only about her well being, but the ramifications of her relationship with the petitioner/friend (36-year-old woman), which, in their view, may be a cause for embarrassment and humiliation to them”.
“(The married woman), on the other hand, as a mature working woman, has clearly and unequivocally expressed her desire to reside with the petitioner and is completely averse to the fetters sought to be imposed on her freedom of choice, in this regard,” the court noted.
The bench concluded that the married woman “has categorically expressed an independent choice to reside” with her friend.
“Needless to state that there can be no fetters imposed on the right of an adult woman to reside with whosoever she desires, unless the same is contrary to law,” it said.
The apex court, in its unanimous verdict last year, had struck down part of Section 377 of the Indian Penal Code, which criminalised consensual sex between people of the same gender, saying it was “irrational, indefensible and manifestly arbitrary”.
It had said that the provision violated the constitutional right to equality and dignity.
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