Supreme Court decriminalised all consensual sex among adults in private including homosexual sex

We hold and declare that:

(i) Section 377 of the Penal Code, in so far as it criminalises consensual sexual conduct between adults of the same sex, is unconstitutional;

(ii) Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution;

(iii) The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation;

(iv) Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law; and

(v) The decision in Koushal stands overruled.

IN THE SUPREME COURT OF INDIA

Writ Petition (Criminal) No. 76 of 2016, 

Decided On: 06.09.2018

 Navtej Singh Johar  Vs. Union of India (UOI) and Ors.

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Whether persons of same gender are entitled to lead Live-in Relationship?

But, apart from the question whether two adult persons of the same gender can be permitted to be in relationship and can they be permitted to live together, a larger question arises as to whether the liberty of a person who had attained majority can be curtailed. In the decision of the hon'ble Supreme Court in Sony Gerry V. Gerry Douglas (MANU/SC/0180/2018 : AIR 2018 SC 346) it was observed that;

"it needs no special emphasis to state that attaining the age of majority in an individual's life has its own significance. She/he is entitled to make her/his choice. The Courts cannot, as long as the choice remains, assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the Courts should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation."
7. With respect to permitting of 'live-in relationship' the hon'ble Supreme Court in Nandakumar and another V. State of Kerala and others (MANU/SC/0505/2018: AIR 2018 SC 2254) observed that, even if the parties are not competent to enter into the wedlock, they have the right to live together even outside the wedlock. It would not be out of place to mention that 'live-in relationship' is now recognized by the Legislature itself which has found its place under the provisions of the Protection of Women from Domestic Violence Act, 2005.

Based on principles enumerated as above, this court cannot find that the 'live-in relationship' between the petitioner and the alleged detenue will in any manner offend any provisions of law or it will become a crime in any manner. On the other hand, if the jurisdiction vested on this court is not exercised, it will amount to permitting a violation of the Constitutional right to perpetrate.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP (Crl.) No. 372 of 2018

Decided On: 24.09.2018

 Sreeja S.  Vs. The Commissioner of Police, Thiruvananthapuram and Ors.

Hon'ble Judges/Coram:
C.K. Abdul Rehim and R. Narayana Pisharadi, JJ.

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