Right Of Choice: Kerala High Court Refuses To Put "Fetters" On Adult Woman's Decision To Live Separately From Parents

The father of the woman in this case had filed a habeas corpus petition for her release from alleged unauthorized custody of the 5^th and 6^th respondent women.

The Division Bench comprising Justice Raja Vijayaraghavan V and Justice P M Manoj observed,

“Therefore, in a habeas corpus petition, like in the present case, when the plea before the Court is that a person should be protected against persons with whom she is moving on her own free will by making personal life choices, this Court has to recognize the right of 'choice' of the alleged detenu. Her right to life, liberty, and dignity is to be respected while deciding the issue. As the petitioner, who is an adult, has expressed her desire to live her life in the manner she chooses, no fetters can be placed on the same. No restriction can also be imposed regarding the place where she should stay. The court or the family members of Ms.X cannot substitute their opinion or preference for that of the petitioner in such a matter.”

The petitioner had registered a crime under the POCSO Act at Wandoor police station alleging that his daughter was sexually assaulted by the 5^th respondent woman. The petitioner contended that his daughter was placed under the care of the Child Welfare Committee and was later pursuing her college education. It is alleged that the 5^th respondent reestablished contact with the petitioner's daughter and the daughter then left home without informing her parents. It is further alleged that the petitioner's daughter who came back exhibited hostile behaviour towards them. Later, the petitioner alleged that his daughter left the college hostel and was staying under the unauthorized custody of the 5^th and 6^th respondent women.

The Court interacted with the petitioner's daughter who stated that she was residing with the respondent women out of her free will. She stated that her family subjected her to physical and mental cruelty and that she had made a conscious decision to live with the respondent women.

Referring to the Apex Court decision in Gian Devi v. Superintendent, Nari Niketan, Delhi (1976), the Court stated that no fetters could be placed on an individual's choice of where and with whom she wishes to reside.

Relying upon Shafin Jahan v Ashokan K M (2018), the Court stated that the independent choice of alleged detenu must be recognized and she should be released from illegal restraint. It said, “What is seminal is to remember that the song of liberty is sung with sincerity and the choice of an individual is appositely respected and conferred its esteemed status as the Constitution guarantees. It is so as the expression of choice is a fundamental right under Articles 19 and 21 of the Constitution, provided the said choice does not transgress any valid legal framework.”

As such, the Court stated that no restrictions could be imposed upon the daughter regarding her choice or the place where she should stay.

Accordingly, the petition was dismissed.

Counsel for Petitioner: Advocates A. Parvathi Menon, P.Sanjay, Biju Meenattoor, Indira.K.P., Paul Varghese (Pallath), Kiran Narayanan, Rahul Raj P., Muhammed Bilal.V.A, Meera R. Menon, Basila Beegam, Devika S. Prasad

Counsel for Respondents: Government Pleader P M Shameer, Advocates Eldho Alias, Revathy K Kappil

Citation: 2024 LiveLaw (Ker) 343

Case Title: xxx v Director General of Police

Case Number: WP (Crl.) No. 584 Of 2024

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