Devu G. Nair vs The State Of Kerala

2024 INSC 228 Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No of 2024 Special Leave Petition (Criminal) No 1891 of 2023

Devu G Nair … Appellant

Versus

The State of Kerala & Ors. … Respondents

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 2023 in a

petition seeking a writ of habeas corpus.

Signature Not Verified Digitally signed by Ashwani Kumar Date: 2024.03.20 15:41:47 IST Reason: Page 1 of 10

3. The appellant and the ‘corpus’ (‘X’ for convenience of reference) are both female

According to the appellant, they were in an intimate relationship. The petition

seeking a writ of habeas corpus was instituted on the ground that the ‘X’ was being

forcibly kept by her parents in their custody whereas she wished to remain with the

appellant. On 13 January 2023, at the stage of admission, the Kerala High Court

ordered the Secretary of the jurisdictional District Legal Services Authority 1 to visit

the fourth and fifth respondents who are the parents of ‘X’, and record her statement

to ascertain if she was under illegal detention. The High Court further directed that

in the event that ‘X’ is in illegal detention, the Station Head Officer of the jurisdictional

Police Station must ensure that ‘X’ is produced before the Secretary, DLSA to

facilitate an interaction with the High Court through a video conferencing session.

The parents of ‘X’ were allowed to join and remain present during the video

conferencing session.

4. On 31 January 2023, the High Court directed the production of ‘X’ before the

Secretary, DLSA on 2 February 2023 to facilitate an interaction with the High Court.

After an interaction with ‘X’, the High Court proceeded to direct ‘X’ to undergo a

counselling session with a psychologist attached to a counselling centre.

5. Faced with the above grievance, this Court on 6 February 2023 issued notice and

1 DLSA

Page 2 of 10 issued interim directions. The parents of ‘X’ were directed to produce her before the

Family Court at Kollam by 05:00 pm on 8 February 2023. Further, the Principal

Judge of the Family Court was directed to arrange for an interview of ‘X’ with Ms

Saleena V G Nair, a Member of the e-Committee of the Supreme Court who was,

at that point in time, on deputation. Ms Nair is in the judicial service of the State of

Kerala.

6. The interview was directed to be arranged in consultation with the Principal Judge

of the Family Court and Ms Nair was directed to interact with ‘X’ and submit a report

after ascertaining her wishes on whether she is voluntarily residing with her parents

or is kept under illegal detention.

7. The Principal Judge of the Family Court has submitted a report on the modalities

which were followed.

8. Ms Saleena V G Nair has also submitted a comprehensive report dealing with her

interaction with ‘X’. The report by Ms Nair indicates that sufficient time was granted

to ‘X’ to express her intent and desire and she was given a break in the course of

the recording of her statement so as to reflect on what she had stated.

9. ‘X’ is a major and has completed her Masters degree in Arts. She has stated that

she intends to become a lecturer and is focused on her career. She has stated that

Page 3 of 10 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 volition.

While she has stated that the appellant is an “intimate friend”, she has stated that

she does not wish to marry any person or live with any person for the time being.

10. There is no reason for this Court to disbelieve the report which has been prepared

by a senior Judicial Officer after duly ascertaining the wishes of ‘X’.

11. Consequently, we are not inclined to entertain the Special Leave Petition on the

ultimate outcome before the High Court.

12. However, we would wish to address a note of caution. Learned counsel for the

appellant has submitted that in such matters, the High Court has been passing

orders directing the counselling of persons similarly situated as ‘X’ and there is an

apprehension that the counselling should not turn out into a means to overcome the

will of the corpus particularly in regard to their sexual orientation.

13. The High Courts must duly bear this facet in mind. Ascertaining the wishes of a

person is one thing but it would be completely inappropriate to attempt to overcome

the identity and sexual orientation of an individual by a process of purported

counselling. Judges must eschew the tendency to substitute their own subjective

values for the values which are protected by the Constitution.

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14. Directions for counseling or parental care have a deterrent effect on members of the

LGBTQ+ community. Courts must bear in mind that the concept of ‘family’ is not

limited to natal family but also encompasses a person's chosen family. This is true

for all persons. However, 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 partner and friends who become their chosen family. These

chosen families often outlast natal families as a source of immeasurable support,

love, mutual aid, and social respect.

15. The importance of a chosen family is sometimes lost to the traditional assumption

that the natal family is respectful of a person’s choices and freedoms. Courts must

not wittingly or unwittingly become allies in this misunderstanding, more so in cases

involving habeas corpus petition, petitions for protection of the person, or in missing

persons’ complaints. Since a direction for counselling has been given by the High

Court, which we are inclined to set aside, it is imperative that clear guidelines be

formulated for the courts dealing with habeas corpus petitions and in petitions

seeking protection from family or police interference.

16. Guidelines for the courts in dealing with habeas corpus petitions or petitions for

police protection are formulated below:

a. Habeas corpus petitions and petitions for protection filed by a partner, friend or

Page 5 of 10 a natal family member must be given a priority in listing and hearing before the

court. A court must avoid adjourning the matter, or delays in the disposal of the

case;

b. In evaluating the locus standi of a partner or friend, the court must not make a

roving enquiry into the precise nature of the relationship between the appellant

and the person;

c. The effort must be to create an environment conducive for a free and

uncoerced dialogue to ascertain the wishes of the corpus;

d. The court must ensure that the corpus is produced before the court and given

the opportunity to interact with the judges in-person in chambers to ensure the

privacy and safety of the detained or missing person. The court must conduct

in-camera proceedings. The recording of the statement must be transcribed

and the recording must be secured to ensure that it is not accessible to any

other party;

e. The court must ensure that the wishes of the detained person is not unduly

influenced by the Court, or the police, or the natal family during the course of

the proceedings. In particular, the court must ensure that the individuals(s)

alleged to be detaining the individual against their volition are not present in

Page 6 of 10 the same environment as the detained or missing person. Similarly, in petitions

seeking police protection from the natal family of the parties, the family must

not be placed in the same environment as the petitioners;

f. Upon securing the environment and inviting the detained or missing person in

chambers, the court must make active efforts to put the detained or missing

person at ease. The preferred name and pronouns of the detained or missing

person may be asked. The person must be given a comfortable seating, access

to drinking water and washroom. They must be allowed to take periodic breaks

to collect themselves. The judge must adopt a friendly and compassionate

demeanor and make all efforts to defuse any tension or discomfort. Courts

must ensure that the detained or missing person faces no obstacles in being

able to express their wishes to the court;

g. A court while dealing with the detained or missing person may ascertain the

age of the detained or missing person. However, the minority of the detained

or missing person must not be used, at the threshold, to dismiss a habeas

corpus petition against illegal detention by a natal family;

h. The judges must showcase sincere empathy and compassion for the case of

the detained or missing person. Social morality laden with homophobic or

transphobic views or any personal predilection of the judge or sympathy for the

Page 7 of 10 natal family must be eschewed. The court must ensure that the law is followed

in ascertaining the free will of the detained or missing person;

i. If a detained or missing person expresses their wish to not go back to the

alleged detainer or the natal family, then the person must be released

immediately without any further delay;

j. The court must acknowledge that some intimate partners may face social

stigma and a neutral stand of the law would be detrimental to the fundamental

freedoms of the appellant. Therefore, a court while dealing with a petition for

police protection by intimate partners on the grounds that they are a same sex,

transgender, inter-faith or inter-caste couple must grant an ad-interim measure,

such as immediately granting police protection to the petitioners, before

establishing the threshold requirement of being at grave risk of violence and

abuse. The protection granted to intimate partners must be with a view to

maintain their privacy and dignity;

k. The Court shall not pass any directions for counselling or parental care when

the corpus is produced before the Court. The role of the Court is limited to

ascertaining the will of the person. The Court must not adopt counselling as a

means of changing the mind of the appellant, or the detained/missing person;

Page 8 of 10 l. The Judge during the interaction with the corpus to ascertain their views must

not attempt to change or influence the admission of the sexual orientation or

gender identity of the appellant or the corpus. The court must act swiftly against

any queerphobic, transphobic, or otherwise derogatory conduct or remark by

the alleged detainers, court staff, or lawyers; and

m. Sexual orientation and gender identity fall in a core zone of privacy of an

individual. These identities are a matter of self-identification and no stigma or

moral judgment must be imposed when dealing with cases involving parties

from the LGBTQ+ community. Courts must exercise caution in passing any

direction or making any comment which may be perceived as pejorative.

17. The above 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. The court must advert to

these guidelines and their precise adherence in the judgment dealing with habeas

corpus petitions or petition for police protection by intimate partners.

18. Insofar as the present facts are concerned, the Criminal Appeal is disposed of in

view of the report of the Judicial Officer.

Page 9 of 10

19. Pending applications, if any, stand disposed of.

…...…...….......………………....…CJI.

[Dr Dhananjaya Y Chandrachud]

…...…...….......………………....…..J. [J B Pardiwala]

…...…...….......………………....…..J. [Manoj Misra]

New Delhi;

March 11, 2024 GKA

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