Police cannot stop consensual cohabitation between two queer adults

This photograph shows a poster held up by a participant at a rally in Kolkata on September 16, 2018 to celebrate the Supreme Court’s verdict reading down Section 377 of the Indian Penal Code. The poster, prepared by the Jadavpur University Queer Collective, simply says “Bhalobashar aajadi” in Bengali, which translates as ‘freedom to love’. The text is written in big bold letters in red on a white chart paper. The initials JUQC are mentioned on the bottom right corner. The poster fills up the main part of the photograph, with only the hands and a part of the participant’s head visible on the edges of the poster. In the background more participants can be seen. Photo credit: Kaushik Gupta

Advice - Rights and Laws, Feb '19
Debayan N. Sen assures that consensual cohabitation by same-sex couples is not a crime

Reader queries

I’m a gay man . . . recently my partner and I have been facing resistance from my partner's family, especially his parents. We’re both adults and aged about 21 years. My partner’s parents are regularly threatening me with police action. We’re thinking of leaving our families and start living together and separately from them. But I’m extremely worried about both of us being harassed by the police or other persons for living together. My question is whether two gay men can live together without any disturbance by the police authorities and whether the same is deemed illegal under Indian law?
Anonymous, Kolkata

Dear Anonymous

Last year in September, the Honourable Supreme Court of India passed a verdict in the matter of Section 377 of the Indian Penal Code (Navtej Singh Johar & Others Vs. Union of India Ministry of Law and Justice). The apex court declared that sexual intercourse of any nature between two consenting adults of the same sex or gender doesn’t fall within the penal ambit of Section 377. The court also said consensual cohabitation between two adults of the same sex or gender is not a criminal act. Thereafter, different courts of law have passed verdicts referring to the apex court’s ruling on Section 377 that consensual cohabitation between two adults, irrespective of their sex or gender, was well within their constitutional rights.

As recently as January 29, 2019, a Division Bench of the Calcutta High Court comprising of Justice Joymalya Bagchi and Justice Ravi Krishan Kapur in Shampa Singha Vs. State of West Bengal & Others ruled that consensual cohabitation between two adults of the same sex or gender cannot be illegal. The Division bench further held that self-determination in the matter of sexual preference or consensual intercourse, even if not procreative, was inherent for the enjoyment of life and liberty by every individual, and was protected under the scheme of constitutional morality and couldn’t be whittled down based on the concept of morality or religion of others.

So the answer to your query is that yes, two adult gay men in India can live together and the same isn’t illegal. Their preferences with regard to their sexual or romantic partner are protected under Article 21 of the Constitution. In fact, the same will apply to any adult queer couple, including two women, or if one partner is transgender and the other cisgender, or if both are transgender persons, and so on.

Any action taken by the police to separate you from your partner will be an excess of their authority. If any such action takes place, you can take the recourse of law by complaining to the higher police authorities about the conduct of the police officers concerned. You will also have the option of filing a writ petition before the Calcutta High Court. If you need support in filing such complaints, please lose no time in writing to Varta Trust at the email address provided below.

Readers in India please note, if you need legal aid in relation to discrimination or violence around your gender or sexuality, you can access Varta’s online locator of queer-friendly legal aid and health service providers here – Editor.
 
About the photograph: Poster at a rally in Kolkata on September 16, 2018 to celebrate the Supreme Court’s verdict reading down Section 377 of the Indian Penal Code. The poster, prepared by the Jadavpur University Queer Collective, says ‘freedom to love’ in Bengali. Photo credit: Kaushik Gupta

Author Photo

Debayan N. Sen

Debayan N. Sen is a lawyer and a believer in celebrating free human life. Write in your queries to vartablog@gmail.com, and they will be answered with due respect to confidentiality.

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