High Courts Shouldn't Try To Overcome Sexual Orientation Of Same-Sex Couple Through Counselling In Habeas Corpus Cases: Supreme Court

The Supreme Court has directed that in Habeas Corpus petitions relating to same-sex couples, the High Court should only ascertain the wishes of the alleged detinue and not try to overcome the sexual orientation of the detenu through a purported process of counselling.

The Court was hearing an SLP by the female partner of a lesbian woman challenging the Kerala High Court's Order, asking the woman to attend a gender sensitization counselling session, in a habeas corpus petition filed by the partner.

During the hearing today, the Bench of Chief Justice DY Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra perused a report by Saleena VG Nair, a judicial officer from Kerala, prepared after interacting with the alleged detenue, as per an earlier order of the Court.

The Court handed over a copy of the said documents to the Counsel for Petitioner and asked him to go through the same.

After perusing the report, the Counsel remarked, "Looks like I have lost the battle here my lords". As per the report, the detenue had expressed her wish to remain with her family and not go with her partner.

"We tried our best to know what her views were", the CJI replied.

"One legal aspect..... It might impress your Lordships! I came here also because of the difficulty in the order in page no. 62, which is being passed by various High Courts. I have filed a compilation also To avoid counselling which would actually be counselling for changing the orientation." he submitted.

"This is a very interesting concern because when someone goes to the High Court in Habeas Corpus, after the Navjot Singh Johar judgment....", the Counsel said.

CJI interrupted to say, "They (High Courts) can't say go and do counselling."

"That's the problem here. that is what I am indicating. If your lordships write one sentence, it will make a difference", the Counsel said.

"Alright", agreed the CJI and proceeded to pass the order.

The Court in its order recorded, "These proceedings under Article 136 of the Constitution arose from the interim orders passed by the Kerala High Court on 13th January 2023, and 2nd February 2023, in a Petition seeking a Writ of Habeas Corpus. The petitioner and the alleged detenue are both female and according to the petitioner they were in an intimate relationship. The Habeas Corpus Petition was instituted on the ground that the detenu was forcibly kept by her parents in their custody whereas she wished to remain with the petitioner."

The Court continued, "Faced with the above grievance, this Court passed on 6th February 2023 issued notice, and passed interim directions".

"The parents of the detenu, namely the 4th and 5th Respondents were directed to produce her before the Family Court at Kollam by 5 pm on 8th February 2023. Further, the Principal Judge of the Family Court was directed to arrange for an interview of the detenu with Saleena V G Nair, a Member of the E-Committee of the Supreme Court, who was at that point of time the deputation. Ms. Nair is in the judicial services of the State of Kerala," the Court recorded in the order.

The Bench further noted in the order that it had directed Saleena VG Nair to submit a report after ascertaining her wishes of the alleged detenue on whether she was voluntarily residing with her parents or was kept under illegal detention.

"The learned Principal Judge of the Family Court has submitted his report on the modalities which were followed. Ms. Saleena V G Nair has submitted a comprehensive report dealing with her interaction with the detenu," the Court noted in the order. It further stated that the report by Nair indicated that sufficient time was granted to the detenu to express her genuine intent and desires and she was even given a break, in the course of the recording of her statement, so as to reflect on what she had stated.

The Court noted that the alleged detenu is a major, has completed her Master of Arts (MA) and intends to become a lecturer, and is focused on her career. "She has clearly stated that she is in possession of a mobile phone and is free to move wherever she desires. Moreover, she has stated that she is living with her parents out of her own violation. While she has stated that the petitioner is an 'intimate friend', she has stated that she does not want to marry or live with any person," the Court further recorded in its order.

"In view of the report, there is no reason for this court to disbelieve the report, which was prepared by a Senior Judicial officer after duly ascertaining the wishes of the alleged detenu. Consequently, we are not inclined to entertain the petition under Article 226 of the Constitution", the Bench ordered.

The Court added, "However, we wish to address a note of caution. The learned counsel appearing on behalf of the petitioner has submitted that in such matters, the High Courts have been passing Orders directing the counselling of the alleged Detenu and there is an apprehension that the counselling should not turn out into a means to to overcome the will of the Detenu, particularly in regard to their sexual orientation. We would expect that the High Court should duly bear this facet in mind."

It further said in its order, "Ascertaining the wish of a person is one thing and it would be quite inappropriate to overcome the identity and sexual orientation of an individual by a process of purported counselling."

The Counsel for the petitioner referred to a judgment of the Madras High Court which said that counselling should be used to tell the parties about LGBT rights and that "that is how the counselling should be done after Navtej Johar".

"I will just add that (to the order)", the CJI said.

Accordingly, the Court disposed of the Petition.

Pertinently, on February 6, 2023, the Court had stayed the order passed by the Kerala High Court directing the woman to go for gender sensitization counselling.

The three-judge Bench had observed, “The Principal Judge of the Family Court and Ms Saleena shall ensure that the statement of the detenu is recorded in a fair and free manner without any coercion or duress from the parents. … there shall be a stay of the orders of the High Court dated 13 January 2023 and 2 February 2023. There shall also be a stay of further proceedings before the High Court till the next date of listing.”

The Bench had also issued a notice to the State government and the parents and sought a report to ascertain the factual situation of the case.

The Kerala High Court had passed an order requiring the Secretary of the District Legal Services Authority, Kollam, to visit the residence of the respondents, record the statement of the detenu, who was the daughter of the respondents, and to ascertain whether she was under their illegal detention.

However, the Court had observed that if the statement of the detenu indicated that she was not under illegal detention, there would be no need to produce her before the Court. By a further order, the Court directed that the detenu shall have to attend a counselling session in an authorized counselling centre over the next four or five days.

Cause Title: Devu G. Nair v. The State of Kerala & Ors. [SLP Crl No. 5027 - 2023]