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LET WOMEN DECIDE FOR THEMSELVES: relationship, marriage, friendship… Need for guidelines in cases of Habeas Corpus
We are asking the Chief Justice of High Court of Kerala, India, for the review of the court order in Saranya’s case and for proper guidelines to protect women’s rights during the process of Habeas Corpus petitions.
Hon’ble Lordship Justice Dr. Manjula Chellur,Chief Justice of High Court of Kerala, Ernakulam, Kerala.
Most Respected Lordship Justice Dr. Manjula Chellur,
Sub: Immediate intervention in the case of Writ Petition Criminal No. 365 of 2013 and Writ Petition No. 337 of 2013 and for framing guidelines in the cases of Habeas Corpus Petitions before Hon’ble High Court of Kerala.
Ref: Judgment in Writ Petition Crimnal No. 337 of 2013 and proceedings in Writ Petition Criminal No. 365 of 2013 and Judgment in W.P. (Crl) No. 373 of 2009 Rajmohan M.S., vs State of Kerala and others by Lordship Justice R. Basant and M.C. Hari Rani.
We beg to bring the following few lines for your kind consideration and immediate action to ensure safety and protection of rights of women who face severe hardship and difficulty in Habeas Corpus proceedings in High Court of Kerala.
Your Lordships are aware that these days it is very common for any parent whose daughter had moved away from home for any reason, be it difficulty to make her choice relating to education, employment, marriage, relationship or friendship come to High Court making allegations against friend of the daughter, her spouse (in cases of love marriage), and seek ‘custody’ of their daughter as she has moved out of ‘parental control’ and ‘protection’, whatever her age.
Your Lordships are aware that the same is not true in cases of men who move away from home. All questions relating to ‘custody’, ‘parental control’ or ‘protection’ seem not to affect them. It is understandable if the girl happens to be less than 18 years of age. How can anyone have control or custody of a woman who has attained majority? It is very disturbing to see that these women who have taken a bold step in their life, who have braved to face life on their own and who are always considered as renegades by the society they live in. More particularly as they have opposed to parental control.
We feel concerned that these Habeas Corpus proceedings are used to unnerve women, threaten them, cajole them, blackmail them to feel that it is very difficult for them to be free. It is common practice when these women are ‘allowed’ to be with the family for discussion. The family who had treated her with cruelty or held her in oppressive atmosphere, would immediately put emotional pressure, blackmail her, threaten her that their ‘respect’ is harmed and they have no choice other than taking their own lives et al. This practice of court in these circumstances more particularly when there is no supervision of any independent person who would ensure that the family behaves in a civil manner and not employ the kind of language that would put the women in stressful condition, is playing havoc in the lives of women. We wish to reiterate Your Lordships that no man faces such a situation in any court. Why women are singled out for such a treatment? Is it that even today we consider women to be objects/commodities? She has no choice of her own? Is she not entitled to same treatment that is enjoyed by man? Are we stuck in patriarchal mindset even after 66 years of independence?
Your Lordships, Habeas Corpus is to set a person at liberty. It’s a process to ensure constitutional guarantee under Article 21. However, in all such cases affecting women, converse is true. ‘Setting her at liberty’ is in fact sending her to same condition that she wanted to move away from. It has become a tool of continued oppression. Hence there is a requirement for giving serious thought relating to the procedures, guidelines, rules to be framed relating to such proceedings.
Your Lordships, In a land mark judgment of High Court of Kerala in the case of Rajmohan M S vs State of Kerala and others (cited above) the rights of women were expressed in unequivocal terms. Her right to decisional autonomy was discussed in detail it reads
“A person who has attained majority, is in the eye of law, a person and a citizen entitled to all rights and privileges under the Constitution. There can be no question of an adult major woman being kept in the “custody” of anyone else against her wishes, desire and volition. Even if it be the parents, such custody cannot in the absence of better reasons be justified. There is no contention that she suffers from any debility which obliges her to be in the “custody” of any other. An adult major woman residing with her parents or husband cannot be held to be in the “custody” of such parent or husband as to deny to her, her rights to decisional autonomy and to decide what is best for her. Parental authority would certainly extend until a child attains majority. But, thereafter, though the parent and the child may be residing together, it can never be held that such child is in the “custody” of the parent. An adult major woman is not a chattel. The theory that until marriage a woman must be under the custody and confinement of her father and thereafter in the custody and confinement of her husband cannot possibly be accepted in this era. Such an adult person is certainly entitled to take decisions which affect her. Parental authority or matrimonial authority will not at any rate give right to such parent or husband to keep such woman under restraint, confinement or detention against her will. The parent may feel that he has the monopoly for taking correct decisions which concern his daughter, but that impression of a doting patriarchal parent cannot blindly be accepted and swallowed by a Court. The parental authority may extend to advice, counsel and guidance. But certainly, it cannot extend to confinement, detention or improper restraint against the wishes and volition of the adult major daughter. Right to take decisions affecting her will certainly have to be conceded to her even assuming that, decisions taken may at times or in the long run prove to be not wise or prudent. This Court comes across many such cases of alleged detentions/ confinement/ compulsive restraint placed on adult daughters by parents. We have taken a consistent stand that the decisional autonomy of such an adult daughter will have to be respected. An adult woman cannot be treated as chattel by this Court. Her rights as an equal citizen will have to be respected and cannot be denied. In cases where we feel that the decision of such alleged detenues does not appear to be voluntary and genuine, we resort to the course of granting them time to reflect, contemplate and ponder. We give them opportunity to be accommodated in neutral venues for some period to facilitate rational and dispassionate evaluation-sometimes for long periods. We give parents opportunity to counsel their children during such period. But ultimately, we do respect the decisional autonomy of such adult children. We are convinced that, that is the proper course to be followed in all cases. To do otherwise would simply be denial of human rights of an adult woman to take decisions affecting her future. That would certainly be denial of the right to life guaranteed under Article 21 of the Constitution of India. The mere fact that the decision may turn out to be incorrect or bad does not justify the denial of the right to take a decision. We do not permit our concept of what is right and good for them to override their own assessment of what is right and good for them. We do not permit the concept of others (including parents) of what is right and good for them to override their own concepts. Concept of right and good may vary with the times. This generation’s concept of right and wrong may not find acceptance with the next. No generation or parent can claim infallibility and enforce its/his concept or right and wrong on the succeeding”
We wish bring to Your Lordships notice the recent case of Saranya, a 21-year-old woman, who was ‘set at liberty’ to be with their family, a family she moved away from. We feel the order was most insensitive and certainly did not enthuse confidence to any one relating to the working of Habeas Corpus proceedings.
Ms. Sruthi and Ms. Saranya, two women both aged 21 years, one a graduate in Commerce and another pursuing final year graduation in commerce from a private college, decided to live together and were opposed to the compulsion of their respective parents to get them married to men. They after serious discussion, decided to move away from their natal home to find their own life. They moved to Bangalore and sought shelter and protection of Sangama, an organisation that provides such facilities to persons who belong to different sexual orientation. Both of them were undergoing training in computer, langauge proficiency in English and Kannada. 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 a 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, had sought the court to enquire Saranya about the content of the affidavit. On enquiring Saranya, the 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 her life 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 a 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 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.
Your Lordships we feel 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. 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, whom 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 strange that the Court concluded that Saranya moving away from her natal home was voluntary but her stay at Bangalore was against her will, without conducting any enquiry on the matter. Saranya was not given the copy of the petition, was not made aware of her rights in the proceedings. There was no privacy to her. The proceedings was summarily closed ‘setting her at liberty’ to go with the family and adequate protection to the family from police for time to come. Was the decision of Saranya really ‘free’. Sruthi, who was her partner, who was living with her is served notice at her natal home, though petitioner knew his daughter and Sruthi were living at Bangalore. What would happen to their relationship?
Sruthi and Saranya had given several media interviews, addressed 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.
Your Lordships, we have no other alternative other than seeking your Lordship’s intervention in the matter considering the sensitivity of the issue, considering the privacy of the women, considering the effect the orders of the court have on their lives, to immediately call for the records of the proceedings in Writ Petition (Criminal) No. 337 of 2013 review the order passed in the light of the above facts and circumstances and records of Writ Petition (Criminal) No. 365 of 2013, wherein similar tactics are being employed, to ensure justice to these women. We feel the necessity of creating set of rules relating to Habeas Corpus proceedings seeking ‘custody’ of women or ‘liberty’ of women. They cannot afford to fight litigation independently. Hence this petition seeking Your Lordships intervention on humanitarian grounds.
We pray Your Lordships to get these women justice, for which act of kindness we would be ever grateful.
The Petition Signers