Protection of Human Rights of Women. Need for guidelines in cases of Habeas Corpus proceedings affecting women
Bangalore, 6 July 2013: Praja Rajakiya Vedike organised a press meet to discuss the order passed by Hon’ble High Court of Kerala in the case of two women who wanted to live together and who were opposed to heterosexual marriage. One of the women, Saranya’s father had filed a writ petition seeking writ of Habeas Corpus alleging that his daughter Saranya is detained by Sruthi, whom he alleged had enticed to take his daughter away from Shornur, in Kerala. The petition was simple and devoid of any detail. Court had directed the police to keep the detenue (Saranya) present before the court on 30th July, 2013. It was widely reported in the Media. Sangama came to know of the same from the media news immediately made arrangements to enable Saranya to reach the Court on 30th July, 2013.
Saranya reached the court much in advance at 10 am. Her parents and her maternal uncle were present. She spoke to them for about 15 minutes. It was the first case of the day and immediately beginning of the session of court, the counsel for the father of Saranya informed the court that the parents are unable to speak to the detenue and the court ordered that the detenue should be with the family without interference from anyone. She was with the family for nearly 3 hours. She was visibly distraught when the court assembled after recess at 1.45pm.
The court verified the affidavit filed by Saranya detailing the fact that she was not a detenue and that the family was aware of her leaving the family and her decision to be at Bangalore. It is pertinent to note that Saranya has little knowledge of English. The counsel for Saranya had prepared the affidavit after discussing with her in Malayalam. The court enquired and Saranya stated that she is not aware of the contents of the affidavit. The court enquired the counsel and the counsel informed the court that immediate enquiry of the contents be made with her client in the open court. It was also suggested by the counsel that Saranya be enquired in private. Court did not agree to the same and opined that Saranya be sent to government shelter for some time and the matter be taken up after some days. Immediately the counsel appearing for the father of Saranya repeatedly stated that Saranya had stated to them that she wanted to go with her parents. Parents reiterated the same the court inquired Saranya and she nodded her head. Immediately the court stated that she is free to return home with her parents. A detailed order came to be passed. It was stated by Saranya that she had left home on her own volition to Bangalore. The police were directed to provide protection to the family for their safe return to her home and also directed the police to provide protection as and when required.
The question that arises, whether Saranya, who had voluntarily moved away from her natal home to be with her friend Sruthi and to lead independent life was a detenue? Whether a petition filed by father of Saranya who wanted his ‘parental control’ and ‘custody’ of his adult daughter be considered a petition for Habeas Corpus petition, given the kind prayer. When the detenue moved away from her natal home being opposed to them, was it proper to direct her to be with the family for 3 hours without any supervision. Was the court aware of the kind emotional pressure that Saranya may be subjected to? Why did not court make a detailed enquiry with the ‘detenue’ Saranya in an atmosphere that was stress free? It was visible to everyone in the court that she was emotionally distraught. Even when she was near the Bench her father was holding her hand it was only when court official asked him to leave her did he leave her and stood few yards from her. Did she disown the affidavit because of the emotional distress? When the counsel appearing for Saranya on being questioned about the affidavit, she had sought court to enquire the Saranya of the content of the affidavit. On enquiring the Saranya court could have concluded whether she had stated as per the affidavit. If her answer were to be true to the contents, the court’s decision could have been different. Somewhere we feel that the process to which Saranya was subjected to was not conducive to make free, informed choice. It is evident that she had moved out of her family on her own volition. Why no equiry was made as to why she moved away from her family?
A packed court hall, full of media glare, in the presence of her family that had emotionally blackmailed her, what could be seen was Saranya’s monosyllabic replies to the queries. Was she free while making such statements?
Saranya has the right to move away from her family with her friend, her right to move away from her family or resolve to live with her friend or to return to her family. What matters most was, in all the situations was her choice really a free choice? Today Sruthi is shocked, emotionally disturbed and threatened of her own existence. Who is responsible if Saranya is forced into a heterosexual marriage or if she were to harm herself or she is put in danger. Given the kind of patriarchal attitude to compel women into marriage, was it safe to send her to her family? Certainly number of questions arise and hence the need for a look into such cases.
Though the first petition did not have the required details. The court had directed the petitioner to file additional affidavit. The additional affidavit contained the details wherein the organisation Sangama was said to be a dangerous organisation and that Saranya was in distress. Sangama was not made a party to the proceedings. Nor Saranya or Sruthi were supplied with the copies of the petition to ask for their response.
It is common that whenever a woman moves away from the family, the family feels that their respect is affected, be it bar girls, married women, unmarried women, they seek assistance of police and lodge complaint of kidnapping or file a habeas corpus petition. A most precious writ to set people free from bondage is used to ‘get her back’ to the family. Women who are already in distress and who have not experienced court or proceedings are threatened with the consequences of the litigation and threats of harm either to her life or that family would harm themselves as they have been shamed would result in the woman being compelled to take decision certainly not to her liking but under compulsion. Such situations take away all the rights that are guaranteed to women in law. She is always considered as chattel, a person who is to be under the parental control before marriage and under control of husband after her marriage.
Praja Rajakiya Vedike feels that there is requirement for a set of guidelines in Habeas Corpus proceedings relating to women giving her the required space, conducive atmosphere, enabling conditions, assistance of counselor and other facilities so that she makes an independent decision of her person. Shakun Mohini, Women’s Rights Activist from Vimochana shared “What is the right to choice, any choice in their life in women. We say progress, women are coming out for work but women have no right to choice where they live what they wear, who they live with, what they will choose to study, where they will move, they have no right to choice and that is what need to be questioned. It is very sad that a Judge who has to decide the free will of the girl when she is an adult.”
“Habeas Corpus remedy is used to protect the rights of individual freedom, but in this situation families are using against the freedom of a person and denying the right to freedom. There is a need for a debate on this” Mr. Aravind Narayan from Alternative Law Forum and Mr. B T Venkatesh from ReachLaw expressed in the press meet.
Addressing the media Elavarthi Manohar, Joint Secretary; Praja Rajakiya Vedhike shared that “Why was Sangama not questioned in the court proceedings? In the writ petition only Sruthi was made a respondent why not Sangama? Sangama not being a respondent in this writ petition leads to a series of doubts. In this particular matter the High Court of Kerala did not provide a space for Saranya to express her views independently. This is the right guaranteed by the constitution of India”. He added that “What rights are there for women and what not and what role will Judiciary play. There should be a larger debate on this. This issue is not only about lesbians but also about all women from all sections. We are exploring in what ways we can challenge this judgment and how to take forward this process”
Sruthi and Saranya had given several media interviews, attended press conferences in Bangalore, expressed their love to each other, affectionate relationship and about leading a life together. The kind of emotional blackmail exerted on Saranya by her parents through the High Court made her wilt under pressure.
It was felt that High Court of Kerala ought to have created a conducive environment, atmosphere, privacy and time to reflect away from public glare for Saranya to take an independent decision which is the right of every adult women guaranteed by the constitution.
No one has right over any adult women. No one can claim her custody, be it the father, husband or the son. All institutions should enable and respect the decisional autonomy of an adult woman. All such processes that do not create such an atmosphere would commit gross violation of the right of women guaranteed by the Constitution of India.
It was strongly felt that the issue of women rights in Habeas Corpus proceedings required larger debate in public and there was a urgent need for set of guidelines in such proceedings.
For more details: Elavarthi Manohar, Joint Secretary, Praja Rajakiya Vedike 9483950202, 9632223460