Kerala High Court: In a writ petition filed by the parents of a 23-year-old member of the LGBTQ+ community residing with her transgender partner, praying that her custody be given to the State so that she may be committed to the Medical District Board to undergo psychological evaluation to ‘treat her sexual orientation’, the Division Bench of Raja Vijayaraghavan* and P.M. Manoj, JJ., while upholding petitioner daughter’s right of choice and right to live life on her own terms, said that sexual orientation of a person is an innate part of a person’s identity and that the petitioner’s daughter was an adult who consented to living with her partner..
Background
The daughter of the petitioners, aged about 23 years old, had formed an acquaintance with respondent 5, who is a member of the LGBTQ+ community. Respondent 5, along with others, had formed an online social media group by the name of “Mazhavillu”, and have been alleged to have lured the petitioners’ daughter into joining the group. The petitioners contended that their daughter was suffering from certain behavioural issues and on previous occasions has had to resort to seeking treatment under a psychologist who had also issued a certificate indicating that she was engaged in a toxic relationship with a person of the same gender.
The petitioners asserted that when their daughter went missing, they filed a complaint with the police, leading to the registration under Section 57 of the Kerala Police Act, however, their daughter was located and produced before the Magistrate. The Petitioners further claimed that when they attempted to save their daughter from the clutches and influence of respondent 5 , a complaint was lodged by the latter, resulting in the registration of offences under various provisions of the IPC, wherein the petitioners and others have been named as the accused. They further asserted that, under the pretext of dispute resolution, their daughter was invited by the respondent 5 and subsequently forcefully taken away, and that despite lodging a complaint with the police, no action had been taken till date. Therefore, with the grievance that their daughter was being detained illegally by respondent 5, the petitioners have filed this writ petition.
Contentions
The petitioner’s daughter contended that she and respondent 5 a transman are in a consensual relationship with each other. She further stated before the Court that her parents, the petitioners were under the impression that the she suffered from some psychiatric issues and forced her to undergo counselling to persuade her to overcome her identity and sexual orientation. She further contended that as she found that the attitude and behaviour of her natal family was traumatic to her psyche, she left the company of her parents to join her partner, respondent 5 and this prompted her parents to lodge a complaint before the police under the caption “person missing”.
She said that she appeared before the Magistrate and had stated that the respondent 5 was her chosen partner, and that she intended to live with him, to which the Magistrate permitted her to join respondent 5. However, she told the Court that her parents and relatives attempted to abduct her, and they assaulted respondent 5 and inflicted injuries. She asserted that she was safe in the company of the respondent 5, with whom she intended to stay.
The petitioners on the contrary submitted that their daughter was suffering from various psychological issues and that she had undergone psychology counseling and as advised by the Counsellor, she has been referred to the Psychiatric Department attached to the District Hospital, stating that they had also filed an application to refer their daughter to the District Medical Board for psychological evaluation and to ascertain as to whether she was in a fit state of mind to take an independent decision.
Analysis and Decision
Upon considering the submissions made, the Court noted that the petitioner’s daughter was an adult who on her own volition decided to live with respondent 5, and that she as capable of making her own decisions as to how she wanted to lead her life.
The Court examined the counselling report issued by the psychologist that said that the daughter was in a toxic relationship with respondent 5, and decided that the said report as ‘fundamentally flawed’ and was liable to be ignored as the psychologist had formulated the report upon the erroneous presumption that the expression of gender identity or sexual preferences by the daughter was merely an act of defiance and that treatment could alter her sexual orientation.
The Court referred to K v. State of Kerala, 2024 SCC OnLine SC 351 that laid down the guidelines for habeas corpus and police protection matters and held that directions for counseling or parental care had a deterrent effect on members of the LGBTQ+ community.
The Court then went on to refer to the Yogyakarta principles whose preamble defined ‘Sexual Orientation’ as “as each person’s capacity for profound emotional, affectional, and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender”.
The Court remarked “from an early age, LGBTIQA+ individuals face stigma, violence, and discrimination on the basis of their identity. This stigma is often rooted in inaccurate beliefs and cultural norms that repress gender non-conforming behaviour and expressions.
The Court said that the right to privacy has been recognised as an intrinsic part of the right to life and personal liberty Under Article 21, and sexual orientation is an innate part of the identity of LGBT persons and is an essential attribute of privacy.
Based on these premises, the Court upheld the right of choice of the daughter and respected her right to live life on her own terms. Further, the Court rejected the petitioners’ application for referring her to the medical board, as well dismissed the writ petition, with the following directions:
(i) The petitioners were directed to submit all the certificates, identity cards and relates documents of their daughter to the SHO within a week’s time.
(ii) Upon receipt of said documents, the daughter was to be notified and appropriate measures would be taken to ensure handover of the documents to her.
(iii) The SHO was further instructed to ensure no acts of violence or threats were metes out to the daughter by her family members.
The Court ended on a hopeful note that the petitioners may come to accept their daughter’s sexual orientation and preferences with understanding and compassion.
[Shereena Hakkim v. State Police Chief, 2024 SCC OnLine Ker 3203, decided on 21-06-2024]
*Judgment Authored by: Justice Raja Vijayaraghavan.
Advocates who appeared in this case:
Advocates for the petitioner: A. Sanil Kumar, Advocate
Advocates for the respondent: Advocate General, Rebin Vincent Gralan, Mahima, Director General of Prosecution, (AG-10), P. M. Shameer, Advocates