Habeas Corpus Petition in Delhi High Court
On the 12th of July, 2019, a division bench of the Delhi High Court decided whether a habeas corpus petition filed by a transgender man (Monu) to set his romantic partner at liberty from her family members, could be allowed. The petition was filed against the State to ensure that if the detenue was indeed found to be detained against her will, she be at once set at liberty. Summarily, the court rejected the petition.
The petition averred that Ms. Manisha @ Neeshu and the petitioner, Monu, were in a romantic relationship and lived in Delhi for a brief period of time before the Haryana Police forcibly sent Manisha to live with her chacha and bua (paternal uncle and aunt) against her express desire. Ms. Manisha, the detenue, had left her home to visit her paternal grandmother on the 29th of June, 2019 but never arrived at her grandmother’s place. Accordingly, her father filed a case of wrongful confinement (S. 346, Indian Penal Code). While the police were investigating the matter, they found that she was staying with Monu and another friend (Prince) at Hansi City in Haryana. Once the police discovered Manisha, they took her to the police station, and later before a judicial magistrate who recorded her statement under S. 164 of the Code of Criminal Procedure. In that statement, Manisha averred that she had gone to Delhi with her friend of her own volition and that she wanted to go and live with her parents once again. On the basis of this statement, the judicial magistrate released her to her parents. As per the record then she resided with her parents (and not her chacha and bua) in Haryana at the time of the petition of her own volition. The habeas corpus petition was accordingly dismissed by the judges. The judges also did not find any reason to doubt the proceedings in the court of the judicial magistrate and gave the petitioner the option to file in the Punjab and Haryana High Court should he feel that the proper procedure was not followed.
Habeas Corpus Petition in the Punjab and Haryana High Court and the Interim Order
In what followed, the petitioner filed a similar petition in the Punjab and Haryana High Court wherein he prayed that Ms. Manisha was illegally detained against her will by her father, and he prayed that she be set at liberty. This was the case of Monu Rajput v. State of Haryana CRWP-621-2019 and on the 13th of August, 2019, an interim order was passed by a single judge bench. In this matter, when Ms. Manisha was asked whether she would like to live with the petitioner, she answered in the affirmative and the order records that she was unable to give much particulars in respect of the proceedings that her father had previously initiated under S. 346, viz. of wrongful confinement. Surprisingly, even after her recording her will, the Punjab and Haryana High Court did not honour it. Instead it decided that since her father could not be present for the hearing (owing to a lawyers’ strike which had prohibited the father from entering the courtroom), the matter should be adjourned. In the meanwhile, Ms. Manisha was sent to a Nari Niketan (a woman’s home). It is unclear why the father needed to be present in the matter. Arguably because he was a named party in the habeas corpus writ filed in the Punjab and Haryana High Court but what is of utmost importance in deciding this petition is the will of Ms. Manisha, who was present in court and expressed her will. In fact, the interim order discusses the will of the detenue, the point in issue, for only one sentence. A large part of the order is dedicated to the lawyers’ strike that gripped the Punjab and Haryana court system at the relevant time.
The order of the Punjab and Haryana High Court did not seem to be correct especially since the subject of the habeas corpus petition, Ms. Manisha, had herself stated her will to live with the petitioner and away from her father. The objective of a habeas corpus petition is to assure the liberty of the individual unless such person is lawfully stripped off it by law or executive order. Here, there seems to be no such justification. Ms. Manisha was an adult of 19 years of age and she had stated her will clearly. In the very same matter, in the Delhi High Court, her will had been honoured. In fact, a judicial magistrate’s court from the same State court system had also found her stated will sufficient to release her to her parents, as discussed in the previous paragraph. The Punjab and Haryana High Court did not give any reason why her statement was not sufficient to conclusively dispose the matter. Previously, in the case Sreeja S. v. The Commissioner of Police, the Kerala High Court had stated that an adult woman was at liberty to decide with whom she wanted to live. That case is similar in nature to the present one especially because it involved a queer relationship, just like the present one. I have argued that that case had the distinction of being the first one to state unequivocally that the right to live in relationships extended to queer persons as well (in that case 2 women). This reasoning was once again reiterated in the Calcutta High Court in the case of Shampa Singha although the facts of that case were the reverse of the present one. In Shampa Singha, one of the lesbian partners had stated that though she had up to the present moment been residing with her partner, she now wished to return to her mother. The court upheld her decision.
Final Decision in the Matter
Coming back to the case at hand, viz. the writ petition in the Punjab and Haryana High Court, the matter finally concluded on the 22nd of October, 2019 when the detenue, Ms. Manisha and all the family members were present in court. The detenue, Ms. Manisha had changed her position since the 13th August hearing and declared her will to continue to live with her parents. At this time, the court decided to honour her will and disposed the petition. The petitioner was successful in getting the permission to visit Ms. Manisha from time to time, provided he intimidated her of the same well in time, and if possible, her parents as well.