LexDEVU G NAIR versus THE STATE OF KERALA & ORS.
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* Author [2024] 3 S.C.R. 1273 : 2024 INSC 228 Devu G Nair v. The State of Kerala & Ors. Criminal Appeal No. 1730 of 2024 (Arising out of SLP (Crl.) No. 1891 of 2023) 11 March 2024 [Dr Dhananjaya Y Chandrachud,* CJI, J B Pardiwala and Manoj Misra, JJ.] Issue for Consideration Whether the High Court, in a habeas corpus petition, was correct in directing the ‘corpus’ to undergo a counselling session with a psychologist; what guidelines should be followed by courts while dealing with habeas corpus petitions or petitions for police protection. Headnotes Constitution of India – Art. 226 – Habeas Corpus petition filed in High Court on the ground that Corpus (also referred to as ‘X’) was being forcibly kept by her parents in their custody whereas she wished to remain with the Appellant – High Court met X and directed counselling with a psychologist – Appeal against order of High Court – Appeal disposed of as X wants to live with her parents out of her own volition – direction for counselling set aside – note of caution – completely inappropriate to attempt to overcome the identity and sexual orientation of an individual by a process of purported counselling – guidelines issued. Held: Appellant filed petition seeking writ of habeas corpus in the High Court – Appellant and X are both female and according to the Appellant in an intimate relationship – petition instituted on ground that X was being forcibly kept by her parents in their custody against her wishes – Interim Order of High Court directing Secretary, District Legal Services Authority (DLSA), Kollam to interact with X to ascertain if she was in illegal detention – subsequent interim order of High Court directing production of X before Secretary, DLSA to facilitate interaction with High Court – High Court directing X to undergo a counselling session with a psychologist – order challenged. [Paras 3-5] 1274 [2024] 3 S.C.R. Digital Supreme Court Reports Principal Judge, Family Court, Kollam directed to facilitate an interaction between X and Ms. Saleena VG Nair, member of e-committee of Supreme Court – report submitted by Ms. Nair – X has stated that she is living with her parents out of her own volition – focussed on her career – did not wish to marry any person or live with any person for the time being – no reason to disbelieve report prepared after duly ascertaining wishes of X – not inclined to entertain Petition on ultimate outcome before the High Court – direction for counselling set aside. [Paras 6, 9-11] Note of caution – completely inappropriate for courts to attempt to overcome the identity and sexual orientation of an individual through purported counselling – Judges must eschew tendency to substitute their own subjective values for the values which are protected by the Constitution – Directions for counseling or parental care have a deterrent effect on members of the LGBTQ+ community – family is not only natal family but encompasses chosen family – chosen families source of immeasurable support, love, mutual aid and social respect – courts to consider importance of chosen family – more so in cases involving habeas corpus petition, petitions for protection of the person, or in missing persons’ complaints – guidelines issued for courts in dealing with such cases – guidelines must be followed in letter and spirit as a mandatory minimum measure to secure the fundamental rights and dignity of intimate partners, and members of the LGBTQ+ communities in illegal detention. [Paras 12-17] List of Acts Constitution of India – Article 136 and Article 226 List of Keywords Habeas Corpus; Illegal detention; Personal freedom; Right to choose family; LGBTQ+ persons; Sexual orientation; Judge-in chamber; Counselling; Dignity; Privacy Case Arising From CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1730 of 2024 From the Judgment and Order dated 13.01.2023 of the High Court of Kerala at Ernakulam in WPCRL No.28 of 2023 [2024] 3 S.C.R. 1275 Devu G Nair v. The State of Kerala & Ors. Appearances for Parties Sriram P., Adv. for the Appellant. Nishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar, Sayooj Mohandas M, S. Jyotiranjan, Sandeep Singh, Advs. for the Respondents. Judgment / Order of the Supreme Court Judgment Dr Dhananjaya Y Chandrachud, CJI 1. Leave Granted. 2. These proceedings under Article 136 of the Constitution arose from the interim orders of the Kerala High Court dated 13 January 2023 and 02 February 2
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