A recent judgement passed by the Kerala High Court has put the spotlight back on the question of individual choice. This after the court ordered a 21-year-old woman from Alappuzha, who alleged torture and forcible confinement by her parents, to return to her family. This young woman told the High Court that she wanted to reside with a 52-year-old man, who she called her ‘spiritual acharya’. In its January 20 order, the court cited her mental state and directed her to go with her parents, observing that she is incapable of taking a decision for herself.
Significantly, the woman’s ‘spiritual acharya’ had moved the High Court seeking her release citing the Supreme Court verdict in the Hadiya case. In March 2018, the Supreme Court had stated in the Hadiya case that individual choice, as well as marriage and plurality, “must be zealously guarded from state intervention”. However, the High Court cited the same SC judgment to justify ordering the 21-year-old Hindu woman to return to her parents.
The matter is now being heard by the Supreme Court after Dr Kailas Natarajan, the woman’s spiritual acharya, challenged the High Court’s order.
It was on January 4 that the Kerala High Court considered the case for the first time after Dr Kailas Natarajan, a resident of Kollam, filed a petition seeking the release of his ‘spiritual partner and yoga shishya’ alleging that she was illegally detained by her family. The woman who was summoned by the High Court said that she was in the custody of her parents and that she did not want to be with them. Instead, she insisted that she wanted to be with her acharya.
Although the 21-year-old told the court that she allegedly faced physical violence from her family, the HC in its interim order on January 4 observed that ‘she was vague and did not narrate anything specific’. The court also observed that they did not find any possibility of physical violence based on her appearance. Justices K Vinod Chandran and MR Anitha also noted that though the woman had a vermillion mark on her forehead, usually worn by married women, she claimed that she is not married and that her relationship with Dr Kailas Natarajan is ‘divine’.
But the interim order also concluded that the woman is not capable of taking a decision, considering the ‘manner in which she interacted’ with the court. It then ordered her to live with her parents.
Notably, much before the issue came to the purview of the High Court, the woman had filed a complaint of torture and forcible confinement against her parents with the Kerala Human Rights Commission and Kerala Women’s Commission.
In the complaint filed with the Human Rights Commission on October 3, 2020, the woman alleged that she had been facing abuse and human rights violations from her parents since her childhood. “For the past three years, the problem increased drastically to the extent that I am unable to bear it anymore,” she said in the complaint.
She further adds that things escalated after her family got wind of her plan to file a complaint of domestic violence last September. According to the complaint, the woman’s father who was in quarantine after coming in contact with a COVID-19 patient, jumped quarantine and along with her mother and brother allegedly abused her. “They took away my sim (mobile phone’s) to avoid any external help,” she said.
The woman, who resides in Thamarakulam village in Alappuzha, also alleged that some local police officials came to her house and insulted and threatened her at the behest of her father, who is a counsellor at Nooranad police station.
“Almost all the relatives are on their parents' side and I am not trusting any of them right now. I can only rely on my spiritual acharya who is a close family friend from my childhood for guidance and support. He always stood for me in times of need from my school days itself and is very protective and supportive. For the past six months, parents are trying to separate me from acharya who is my sole support in this matter so that they can continue their abuse and control over me. That questioned my very existence (sic),” the woman detailed in the complaint.
Pleading for help, the woman asked the Human Rights Commission to conduct an independent inquiry to help her urgently.
Although the Women's Commission later summoned the woman and her father based on her complaint, she did not depose before the commision.
Meanwhile, her parents have denied illegally detaining her. According to the High Court order dated January 20, the parents stated that the woman was taken to Dr Kailas, who has a degree in psychiatry but is now a self-proclaimed vedic yogacharya, after she went through depression. However, they alleged that she developed an ‘obsessive attachment’ to Dr Kailas. “The parents believe that her obsessive thoughts are not normal and that she requires treatment,” the court said in the order.
Concurring with the parents, the court observed that it was also witness to her ‘obsessive behaviour’ during their interaction with her. It then went on to uphold its interim order and directed the woman to go with her parents.
While the court assessed the woman to be ‘incapable of taking a decision for herself’, it has to be noted that this conclusion was reached without the opinion of a medical expert. The court had persuaded the woman to consult a psychiatrist or a psychoanalyst but she did not abide by it. However, the question remains how the court decided that the woman was incapable of taking her own decisions, without medical opinion.
Speaking to TNM, advocate Sudeeshkar who appeared for Dr Kailas, denied that the woman has a mental illness. "How can the judge find this without psychiatric analysis? She was only attracted to the ideology of Dr Kailas on Vedanta. As per the Mental Health Care Act, 2017, no one can direct someone to consult a psychiatrist. It was this we challenged in the Supreme Court. But since the High Court has not made it clear whether the woman is in illegal custody or not, we were directed to move the HC again to seek clarity."
The advocate also raised concern over the whereabouts of the woman, stating that the house where the family lived is presently locked.
Meanwhile, the court has also considered Dr Kailas’ background as a factor for not allowing the woman to go with him. A policy inquiry conducted following the High Court’s direction found that the man was named as third accused in a 2013 case related to the alleged sexual abuse of a 14-year-old girl. It was alleged that he misbehaved with the girl and sexually abused her at his residence, where she was brought for psychiatric consultancy. However, his name was later removed from the list of accused as the girl changed her statement and there was no factual evidence to prove the allegation other than the statement of the child.
“Antecedents of the petitioner (Dr Kailas) are not such as to trust him with the custody of a young girl of 21 on mere statement of she being tutored; by the petitioner, in spirituality,” the HC said while ordering the woman to go with the family.
Dr Kailas in his petition in the High Court had cited the 2018 Supreme Court verdict that upheld the marriage of Kerala natives Hadiya and Shafin, which was annulled by the Kerala HC.
The case pertains to the marriage between Hadiya, who was born to a Hindu family, and Shafin Jahan and her conversion to Islam in 2016. The HC had annulled the marriage after her father falsely alleged conspiracy behind the religious conversion and marriage, claiming that there are plans to take her out of the country. Though Hadiya had reiterated that she converted to Islam as per her own wish, the High Court annulled the marriage and directed her to go with her parents in 2017. However, the Supreme Court set aside the HC verdict stating Hadiya has the right to make her own choice.
While this case was cited when Dr Kailas moved the HC seeking the woman’s release from the alleged confinement of her parents, the court has cited the same judgement to make her go with her parents.
The court cited the provision of ‘parens patriae’ - the law referring to the power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection - the same used by the SC in the Hadiya-Shafin case.
“A person mentally ill, if produced before court and cases where minor girls elope and on production, express fear to go with their parents, are treated as exceptional situations where the parents' patriae can be invoked,” SC had said. As per this, the court may exercise its jurisdiction to send the woman to an "appropriate home meant to give shelter to women where her interest can be best taken care of." While in Hadiya case, this did not apply, the Kerala High Court stated that the case on hand involving the 21-year-old woman, came within the provision’s ambit.