Kerala High Court
Shereena Hakkim vs State Police Chief on 21 June, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
FRIDAY, THE 21ST DAY OF JUNE 2024 / 31ST JYAISHTA, 1946
WP(CRL.) NO. 592 OF 2024
PETITIONER/S:
1 SHEREENA HAKKIM, AGED 43 YEARS
W/O HAKKIM, THOUFEEK MANZIL, MUSLIM STREET,
PADINJATTINKARA, KOTTARAKKARA P.O., KOTTARAKKARA
VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN -
691506
2 HAKKIM, AGED 54 YEARS
S/O HASSAN KHANI RAWTHER, THOUFEEK MANZIL, MUSLIM
STREET, PADINJATTINKARA, KOTTARAKKARA P.O.
KOTTARAKKARA VILLAGE, KOTTARAKKARA TALUK,
KOLLAM DISTRICT, PIN - 691506
BY ADV A.SANIL KUMAR
RESPONDENT/S:
1 STATE POLICE CHIEF, POLICE HEADQUARTERS,
VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695010
2 SUPERINTENDENT OF POLICE
KOLLAM RURAL, DISTRICT POLICE HEADQUARTERS,
KOTTARAKKARA P.O., KOTTARAKKARA,
KOLLAM DISTRICT, PIN - 691506
3 DEPUTY SUPERINTENDENT OF POLICE
DISTRICT CRIME BRANCH, KOTTARAKKARA P.O.,
KOTTARAKKARA, KOLLAM DISTRICT, PIN - 691506
4 STATION HOUSE OFFICER
KOTTARAKKARA POLICE STATION, KOTTARAKKARA, KOLLAM
DISTRICT, PIN - 691506
5 AMRUTHA R., AGED 22 YEARS
D/O RADHAMANI AND RAVEENDRAN NAIR, THANNIYAMKOTTU
VEEDU, PATTAMALA, CHENGAMANADU P.O., MELILA VILLAGE,
KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN - 691577
W.P.(Crl.)No.592 of 2024 2
6 AMRUTHA, AGED 22 YEARS
D/O USHA, SUMA VILASAM, PULLURKALA, THEVALAPPURAM,
PUTHUR, NEDUVATHOOR VILLAGE, KOTTARAKKARA, KOLLAM
DISTRICT, PIN - 691507
7 DISTRICT MEDICAL BOARD
REPRESENTED BY ITS CHAIRMAN/DISTRICT MEDICAL OFFICER,
KOLLAM DISTRICT HOSPITAL, HOSPITAL ROAD, CHINNAKKADA,
KOLLAM -691 001
(R7 IS IMPLEADED AS PER ORDER DATED 21.06.2024 IN IA
No.1 OF 2024)
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
DIRECTOR GENERAL OF PROSECUTION(AG-10)
SRI REBIN VINCENT GRALAN, FOR RESP 5 &
SMT MAHIMA, FOR RESP 6,
SRI P M SHAMEER, GP.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 21.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(Crl.)No.592 of 2024 3
"CR"
JUDGMENT
Raja Vijayaraghavan, J.
The petitioners herein, being the parents of Ms. X (name withheld
for privacy), state that Ms. X, aged approximately 23 years and a
graduate, has formed an acquaintance with the 5th respondent, who is
identified as a member of the LGBTQ+ community. The 5th respondent,
along with others, has established an online social media group by name
"Mazhavillu '' and they are alleged to have lured their daughter into
joining this group. They contend that their daughter is suffering from
certain behavioral issues and on previous occasions had to seek
treatment under a Counseling Psychologist. To substantiate their claim,
the petitioners rely on Ext.P3, a certificate issued by the psychologist,
indicating that Ms. X, after counselling, was referred to the Psychiatry
Department of the Quilon District Hospital for psychiatric evaluation,
treatment and management as she was found engaged in a toxic
relationship with the person of the same gender.
2. The petitioners further state that their daughter went
missing and they had to lodge a complaint with the police, leading to the
registration of Crime No. 815/2024 at the Kottarakkara Police Station
under Section 57 of the Kerala Police Act. Ms. X was subsequently
located and produced before the Magistrate. The petitioners claim that
when they attempted to save their daughter from the clutches and
influence of the 5th respondent and her men, a complaint was lodged by
the latter, resulting in the registration of Crime No. 836/2024 under
various provisions of the IPC, wherein the petitioners and others have
been named as the accused. They assert that, under the pretext of
dispute resolution, Ms. X was invited by the 5th respondent and
subsequently forcefully taken away. Despite lodging a complaint with the
police, no action has been taken to date. Complaining that Ms. X is
being illegally detained by the 5th respondent, this writ petition is filed
seeking the following relief:
i. Issue a writ in the nature of Habeas Corpus or any other
appropriate writ, order or direction, commanding the respondents
1 to 4 to take the custody of the detenue, XXXXX, aged 23 years,
and produce the detenue before this Hon'ble Court from the illegal
custody and detention of 5th and 6th respondents;
3. This Court issued notice by special messenger calling upon
the party respondents to appear in person before this Court along with
Ms. X.
4. Ms. X and her partner have appeared before us in person.
We have interacted with them while ensuring privacy and safety of the
lady. Ms.X stated before us that she has completed her Graduation in
English and is also proficient in Tally software. She stated that the 5th
respondent is a transman and she has consciously chosen to be his
partner. She stated that her parents, under the impression that the
petitioner is suffering from some psychiatric issues, forced her to
undergo counselling with a view to persuade her to overcome her
identity and sexual orientation. As she found that the attitude and
behavior of her natal family objectionable and traumatic to her psyche,
she left the company of her parents to join the 5th respondent. This
prompted her parents to lodge a complaint before the police under the
caption "person missing". She had appeared before the learned
Magistrate and had stated in unequivocal terms that the 5th respondent
is her chosen partner and she intends to live with him. The learned
Magistrate had permitted her to join the 5th respondent. However, her
parents and relatives attempted to abduct her and in the melee that
followed, they assaulted the 5th respondent and inflicted injuries. She
stated before us that she is fearful of retribution and violence at the
hands of her natal family as she has decided to live with her chosen
partner. She asserted that she is safe in the company of the 5th
respondent with whom she intends to stay.
5. The learned counsel appearing for the petitioners submitted
that Ms. X is suffering from various psychological issues and she had
undergone psychology counseling in Mindful Unified Cognitive Behaviour
Therapy at Peringod and as advised by the Counsellor, she has been
referred to the Psychiatric Department attached to the District Hospital.
He stated that the parents have filed an application to refer Ms. X to the
District Medical Board for psychological evaluation and to ascertain as to
whether she is in a fit state of mind to take an independent decision.
According to the learned counsel, it is only just and proper that the
application be allowed and Ms. X be subjected to evaluation by the
Board.
6. We have carefully considered the submissions advanced.
7. From our interaction, we found that Ms. X is an adult who
has made an informed and conscious decision to live with the 5th
respondent. Ms. X possesses an intelligent and capable frame of mind,
enabling her to make autonomous choices and the manner in which she
proposes to lead her life. The 5th respondent is her intimate friend, with
whom she intends to reside. The petitioners rely on Ext.P3, a counselling
report issued by a Counselling Psychologist, wherein it is stated that Ms.
X is engaged in a toxic relationship with a person of the same gender. We
are of the view that the report proceeds on a fundamentally flawed
premise and is liable to be ignored. The Psychologist appears to have
operated under the erroneous presumption that expression of gender
identity or sexual preferences by Ms.X is an act of defiance and if
treated, her identity and sexual orientation could be altered. Such
assumptions are baseless and inappropriate, and the report cannot be
used to override the autonomous choices that Ms. X has made.
8. The Apex Court in Devu G. Nair. State of Kerala1, while
guidelines dealing with habeas corpus and police protection matters had
succinctly held that directions for counseling or parental care have a
deterrent effect on members of the LGBTQ+ community. Courts were
advised to bear in mind that the concept of 'family' is not limited to natal
families but also encompasses a person's chosen family. Though this is
true for all persons, it has gained heightened significance for LGBTQ+
persons on account of the violence and lack of safety that they may
experience at the hands of their natal family. When faced with
humiliation, indignity, and even violence, people look to their partners
[2024 SCC OnLine SC 351]
and friends who become their chosen family. It was also held that these
chosen families often outlast natal families as a source of immeasurable
support, love, mutual aid, and social respect. The principles and
observations apply on all fours to the facts of the instant case.
9. The Yogyakarta Principles, an outcome of a 2006
International meeting in Yogyakarta, Indonesia, addressed the
application of International Human Rights Law to the rights of LGBTIQA+
persons. The Preamble to the Yogyakarta Principles defines "Sexual
Orientation" as each person's capacity for profound emotional,
affectional, and sexual attraction to, and intimate and sexual relations
with, individuals of a different gender or the same gender or more than
one gender. For many LGBTIQA+ individuals, especially in India,
expressing their gender identity or sexuality, is an act of defiance in a
society that continues to set rigid cultural norms for gender identity and
expression. From an early age, LGBTIQA+ individuals face stigma,
violence, and discrimination on the basis of their identity. This stigma is
often rooted in inaccurate beliefs and cultural norms that repress gender
non-conforming behaviour and expressions. The economic, social and
political discrimination against them can have long-term impacts on their
mental health, employability, access to education, housing and shelter,
especially if such individuals experience familial rejection and isolation
from social support systems. Many LGBTIQA+ youth face familial
rejection, often from an early age. This rejection can take a devastating
toll on individuals and isolate them from physical, emotional and
economic resources that are essential to their well-being. In such cases,
it is important to recognise the family as a site of violence and control for
many queer women, who they need protection from rather than any
"guardianship". (See Sensitisation Module For The Judiciary On
LGBTIQA+ Community brought out by the E- Commitee
Supreme Court of India available at
https://ecommitteesci.gov.in/document/sensitisation-module-for-the-judic
iary-on-lgbtiqa-community/ ).
10. Article 21 provides that no person shall be deprived of his
life or personal liberty except according to the procedure established by
law. The right to life and liberty affords protection to every citizen or
non-citizen, irrespective of their identity or orientation, without
discrimination. The right to privacy has now been recognised to be an
intrinsic part of the right to life and personal liberty Under Article 21.
Sexual orientation is an innate part of the identity of LGBT persons and is
an essential attribute of privacy. Its protection lies at the core of
Fundamental Rights guaranteed by Articles 14, 15, and 21. The right to
privacy is broad-based and pervasive under our Constitutional scheme,
and encompasses decisional autonomy, to cover intimate/personal
decisions and preserves the sanctity of the private sphere of an
individual.The right to privacy is not simply the "right to be let alone",
and has travelled far beyond that initial concept. It now incorporates the
ideas of spatial privacy, and decisional privacy or privacy of choice.
Sexual orientation is integral to the identity of the members of the LGBT
communities. It is intrinsic to their dignity, inseparable from their
autonomy and at the heart of their privacy. (See Navtej Singh Johar v.
Union of India2).
11. Having considered the entire facts, we uphold the right of
choice of Ms. X and respect her right to live life on her own terms. In
that view of the matter, the petitioners are not entitled to any of the
reliefs sought for. We reject the application filed by the parents to refer
Ms. X to the District Medical Board for psychological evaluation.
12. At this stage, Ms. X stated before us that her educational
certificates and personal IDs are retained by the petitioners and they
have refused to hand it over. She stated that though adequately qualified
to secure a job, she may not be able to apply and eke out a livelihood
(2018) 10 SCC 1
unless the certificates are handed over. Having regard to the
submissions, we are of the view that this is a fit case in which necessary
directions are to be issued.
13. Resultantly, while dismissing this petition and granting Ms. X
her liberty, we hereby direct the petitioners to submit all certificates,
Identity Cards, and related documents belonging to Ms. X to the Station
House Officer, Kottarakkara Police Station within one week from today.
Upon receipt, Ms. X shall be notified, and appropriate measures shall be
undertaken to ensure the prompt handover of these documents to her.
The Station House Officer is instructed to ensure that no circumstances
arise which could lead to threats or acts of violence against Ms. X by her
family members.
14. Before parting, we express our hope that the petitioners will
come to accept their daughter's sexual orientation and preferences with
understanding and compassion.
sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
sd/-
P.M.MANOJ
JUDGE
das
APPENDIX OF WP(CRL.) 592/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE FIRST INFORMATION REPORT IN
CRIME NO.815/2024 OF THE KOTTARAKKARA POLICE
STATION
Exhibit P2 TRUE COPY OF THE FIRST INFORMATION REPORT IN
CRIME NO.836/2024 OF THE KOTTARAKKARA POLICE
STATION
Exhibit P3 TRUE COPY OF THE MEDICAL CERTIFICATE DATED
20.05.2024 ISSUED BY SIDDEEK M., COUNSELLING
PSYCHOLOGIST
Exhibit P4 TRUE COPY OF THE COMPLAINT DATE 25.05.2024
SUBMITTED BY THE PETITIONERS BEFORE THE 1ST
RESPONDENT
Exhibit P5 TRUE COPY OF THE COMPLAINT DATE 25.05.2024
SUBMITTED BY THE PETITIONERS BEFORE THE 2ND
RESPONDENT
Exhibit P6 TRUE COPY OF THE COMPLAINT DATE 25.05.2024
SUBMITTED BY THE PETITIONERS BEFORE THE 4TH
RESPONDENT
Exhibit P7 TRUE COPY OF THE COMPLAINT DATE 25.05.2024
SUBMITTED BY THE PETITIONERS BEFORE THE 3RD
RESPONDENT
