[smc-discuss] Fwd: LET WOMEN DECIDE FOR THEMSELVES: relationship, marriage, friendship...Need for guidelines in cases of Habeas Corpus*

Tue Aug 27 06:57:18 PDT 2013

Sign, share and support women's right to make choices.

---------- Forwarded message ----------
From: "Praveen Arimbrathodiyil" <me at j4v4m4n.in>
Date: Aug 27, 2013 6:41 PM
Subject: LET WOMEN DECIDE FOR THEMSELVES: relationship, marriage,
friendship...Need for guidelines in cases of Habeas Corpus*
To: <pravi.a at gmail.com>

*LET WOMEN DECIDE FOR THEMSELVES: relationship, marriage, friendship...
Need for guidelines in cases of Habeas Corpus*

*Sruthi and Saranya, two 21-year-old women from Kerala, who are in love
with each other for the past 7 years, decided to live together. T o
escape forced marriage by their parents with men, they moved away to
Bangalore in July 2013.*

*
*

*Saranya’s father filed a Habeas Corpus petition in High Court of
Kerala, alleging that his daughter was kidnapped by Sruthi. He asked the
court for his ‘parental control’ and ‘custody’ of his adult daughter. *

*Saranya was made to go with her parents by the High Court of Kerala on
30 July 2013. Court proceedings permitting Saranya's parents and uncle
to spend almost 3 hours of time with Saranya without any independent
observer, they put Saranya under a lot of stress and 'emotional
blackmail'. *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?

These days it is very common for many parents 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
adult daughter as she has moved out of 'parental control' and
'protection'. Often parents succeed in forcing their daughters to go
return to them.

*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.*

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 th em to be free.

*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.*

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.

Hence we are asking 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.

*FOR MORE INFORMATION:*

http://prajarajakiya.wordpress.com/2013/08/06/human-rights-violations-against-a-lesbian-couple-in-kerala-india-video-with-english-subtitles/

http://prajarajakiya.wordpress.com/2013/08/06/urgent-need-to-create-guidelines-to-deal-with-the-habeas-corpus-petitions-against-women-by-families-press-conference-report/

http://prajarajakiya.wordpress.com/2013/08/02/saranya-went-back-to-her-parents-on-30-july-2013-after-undergoing-a-lot-of-stress-and-emotional-blackmail/

http://prajarajakiya.wordpress.com/2013/07/30/sangama-will-continue-to-defend-the-rights-of-lesbian-women-cochin-press-conference-on-29th-july-2013/

http://prajarajakiya.wordpress.com/2013/07/27/press-conference-sangama-nails-fathers-lies-comes-to-lesbians-rescue/

*THE PETITION:*

To

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 agai nst 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 Cou rt 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 t o 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 a dvice, 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 genera tion'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. He r 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 S aranya 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 provid e 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 fa ther 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
th at 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 h ave 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 hom e, 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 Peti tion (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.*

Yours faithfully,

The Petition Signers

http://www.avaaz.org/en/petition/LET_WOMEN_DECIDE_FOR_THEMSELVES_relationship_marriage_friendship_Need_for_guidelines_in_cases_of_Habeas_Corpus/?tSvXadb
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.smc.org.in/pipermail/discuss-smc.org.in/attachments/20130827/5828af84/attachment-0002.htm>