Decisional autonomy of a major daughter – a critical review of Dr. Parameswar Lal Vs. N.N. Ullas and Ors. (2014 (1)KLT 937)

A Division Bench of the Kerala High Court in Dr. Parameswar Lal Vs.N.N. Ullas and Ors  (supra), dismissed the writ petition for habeous corpus, filed by a male lover alleging illegal detention of his female partner by her father.  The reasoning of the decision, would take the reader a century backwards to the Victorian age, were a father had unquestioned powers over his wards.

The Petitioner and the detenue in the above case are doctors’ by profession.  They decided to get married, as they realized that they were in love. However, this was not approved by the detenue’s father, consequently she was illegal detained.  As usual the detenue was not allowed to report for work or to appear for the ensuing post-graduate entrance examinations. The petitioner therefore approached the writ court seeking issue of habeas corpus for her production and release. The detenue was produced and she confirmed her love affair with the petitioner and also told that it is her firm decision to get married to the petitioner.  She also stated that in order to force her to withdraw from the relationship, for the last here months, she was kept in confinement without allowing her to continue the employment and even refusing to give the mobile phone. It was told that all these facilities will be restored only if she agrees for a marriage with somebody else, which was not acceptable to her.

The Division Bench while dismissing the writ petition observed that “like in any other sphere of life, there has been a change in the social and moral values. Ours is a society which has recognized freedom to every citizen. But then, these changes that we proudly talk about, and the liberties that are guaranteed to our citizens, cannot be stretched beyond limits nor can such freedom be made weapons to destroy our fundamental values or social establishments like families, which, undoubtedly, concede authority on parents to advise and guide their children. We cannot accept as a general principle that the parents are in all circumstances, bound to concede absolute decisional autonomy to their children, even if they have attained majority and remain helpless even in situations where their wards have taken wrong and immature decisions, which will be disastrous not only to the wards themselves but also to the family itself. Such parental authority, except in cases such as those pointed out by the Chancery Division and approved in Sadanandan's case, should be out of bounds for a writ court, because it is exercised for the ultimate benefit of the ward. It may be to the dislike of the ward, who may resist it and even turn hostile to the parents. But, such immature reactions should not be allowed to influence our judgment, since the ultimate aim and purpose of all these exercise is the welfare of the ward. This Court therefore should, except in extra ordinary situations, loathe interference in cases where the natural parental authority is exercised to the dislike of a lover or even the ward. For these reasons, we find ourselves unable to follow the judgment in Rajmohan's case (supra) and would follow the earlier judgments.”

The decision is founded on three elements (1) it followed the Full Bench of the Court in K.N. Sadanandan vs. Raghava Kurup and others.(2) disapproved, as per in curium, Rajmohan M.S v. State of Kerala (supra), as it did not consider the binding precedent delivered by the Full Bench of the Court (3) adopted the parental authority and its exceptions as provided [in Re Agar-ellis v. Lascelles (1883) 24 Ch.D.317].  It also does not specify that when does the child attain decisional autonomy.  Is it at the age of 18, 21 or at any higher age.  The decisions followed by the Division Bench as binding precedents requires a closer look, because it appears outdated and does not hold the field at this age.

Let us examine the facts in K.N. Sadanandan (supra), before discussing the reasons on which it is founded. “The petitioner, an Ezhava, claims to have married a Nayar lady, aged 21 years. The marriage is evidenced by a certificate issued by the S. N. D. P. Union, and cash receipts for the marriage charges.  The lady respondent is staying with her own parents; and, despite the allegation made by the petitioner, little has been made to show that she is under restraint, or is being illegally detained by the parents. There are criminal proceedings pending between the parties; the lady on the petitioner's own showing, has filed a petition repudiating her having married the petitioner, and stating that she was staying of her own free will with her parents and was not being wrongfully confined. This is the background against which a writ of Habeas Corpus is prayed for.” The facts may not be relevant, while the legal principle enunciated in the decision, may be.  However, in this case the husband was trying enforce restitution of conjugal rights, while in the case under review the detenue was vehemently contenting that she was wrongfully confined for disobeying the authority of her father. The Full Bench of the Court suggested two sets of reasons for dismissing the petition (1) the principle in Re Agar-ellis v. Lascelles (supra) (2) the principle Queen v. Jackson, where it was ruled that where a wife refuses to live with her husband, he is not entitled to keep her in confinement in order to enforce restitution of conjugal rights.

In re Agar-ellis v. Lascelles (supra), a father put restrictions on his 17 year old daughter’s intercourse with her mother.  The girl was at the time a ward of court.  The Court observed that “the father has the control over the person, education and conduct of his children until they are 21 years of age.  That is the law.”  The Act referred to was the Tenures Abolition Act 1660, Section 8 which gave the father the right to dispose of the custody and tuition of his children up to the age of 21.  In Hewer v.Bryant, trenchant criticism appears against re Agar-ellis v. Lascelles (supra), in the judgment of Lord Denning M.R., where he said, “I would get rid of the rule in re Agar-Ellis 24 Ch.D 317 and of the suggested exceptions to it.  That case was decided in the year 1883.  It reflects the attitude of a Victorian parent towards his children.  He expected unquestioning obedience to his commands.  If a son disobeyed, his father would cut him off with a shilling.  If a daughter had an illegitimate child, he would turn her out of the house.  His power only ceased when the child became 21.  I decline to accept a view so much out of date.  The common law can, and should keep pace with the times.  It should declare, in conformity with the recent Report of the Committee on the Age of Majority (Cmnd.3342,1967), that the legal right of the parent to the custody of a child ends at the 18th birthday: and even up till then, it is the dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is.  It starts with a right of control and ends with little more than advice.”

 It is rather unfortunate that the Division Bench also concurred with the right of the father to control the decisional autonomy of the girl child and its exceptions formulated in re Agar-ellis v. Lascelles (supra), in the case under review.  Three classes of cases in which interference with a father's rights was justified  by English Court, broadly; (1) where the father has forfeited the right by his moral turpitude, (2) where he has abdicated his authority and (3) where he removes the ward out of jurisdiction. It can be seen that the above right of the father and the exceptions formulated were widely criticized and was even disapproved in a latter House of Lords decision, Gillick v.West Norfolk and Wisbeach Area Health Authorty ( Hewer v.Bryant (1970) 1QB 357).

The House of Lords in Gillick v.West Norfolk and Wisbeach Area Health Authority (supra) held that the parental right to control a minor child deriving from the parental duty was a dwindling right which existed only in so far as it was requested for the child’s benefit and protection; that the extent and duration of the right could not be ascertained by reference to a fixed age, but depended on the degree of intelligence and understanding of that particular child and a judgment of what was best for the welfare of the child; that the parents’ right to determine whether a child under 16 should have medical treatment terminated when the child achieved sufficient intelligence and understanding to make that decision itself.   While adopting the above standards, the courts in England attempted to classify a child in his minority as Gillick competent or otherwise, given his intelligence and understanding.  In short the position is that the control of parent, even during his minority is determined by the ‘Gillick competence’ of the child.

In the backdrop of the development of law in England, it would be appropriate to consider the decision of another bench of the Court, dealing with the same issue, in Rajmohan M.S v. State of Kerala (supra), the Court held that “We are afraid that such a general principle of law cannot be accepted. 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 to 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 advice, 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.”

It may be true that Division Bench, in Rajmohan M.S v. State of Kerala (supra), did not discuss the development of law under the English Law regarding the decisional autonomy of a child, against the right of the parent to control his  child, however the decision appears to have been made keeping pace with the modern complexities of child-parent relationship.  But, terming the decision as per incurium may be uncharitable, for having not discussed the Full Bench of the Court in K.N. Sadanandan (supra), and the outdated English principles discussed therein.

 The Division Bench in Dr. Parameswar Lal Vs. N.N. Ullas and Ors, does not reflect the correct legal position in accordance with the law of England or that in India.  It also does not keep pace with the changing world, where one find that a child attain ‘Gillick Competence’ at a very young age, while their parents lag miles behind. .