No Counselling or Parental Care Orders in Partners' Habeas Corpus Cases: Supreme Court Lays Down Guidelines

The appellant sought a writ of habeas corpus in the Kerala High Court, stating that her female partner, referred to as 'X', was being forcibly kept by her parents (para 3). The High Court had a DLSA Secretary record X's statement and, after interacting with her, directed X to undergo counselling with a psychologist (paras 3-4). On 6 February 2023 the Supreme Court had X produced before a Family Court and interviewed by a judicial officer (para 5). The report recorded that X, a major, lived with her parents of her own volition and did not wish to marry or live with anyone for the time being (paras 8-9).

The Court found no reason to disbelieve the judicial officer's report and declined to interfere with the outcome (paras 10-11). Ascertaining a person's wishes differs from trying to overcome their identity and sexual orientation through purported counselling, and judges must not substitute their own subjective values for constitutional ones (para 13). Directions for counselling or parental care deter members of the LGBTQ+ community, and 'family' includes a chosen family of partners and friends (para 14). Courts must not become allies of the assumption that the natal family always respects a person's choices (para 15). The guidelines require priority listing, no roving enquiry into the relationship when judging locus standi, interaction in chambers with secured recordings, and keeping the alleged detainers away (para 16). Minority must not be used at the threshold to dismiss a petition, and a person unwilling to return must be released immediately (para 16). Same-sex, transgender, inter-faith or inter-caste couples seeking protection must get an ad-interim measure such as police protection first (para 16). The guidelines are a mandatory minimum, and judgments must record adherence to them (para 17).