Joju George vs State Of Kerala Represented By The Home Secratary

Dr. A.K. Jayasankaran Nambiar, J

This writ petition has been preferred by three petitioners seeking a writ  of  Habeas  Corpus  on  the  allegation  that  their  daughters  Teresa  Joju [daughter of the 1st petitioner], aged 21 years, Elna Thomas, [daughter of the 2nd petitioner], aged 26 years and Anjali Anto [daughter of the 3rd petitioner], aged 30 years, are being illegally detained by respondents 7 to 9, who are administering a religious congregation that goes by the name of“Monastery of Holy Ruah (MHR)”. It is their case that while their respective daughters had joined the said congregation at a time when the said congregation was recognised by the Archdiocese of Thrissur, subsequent activities of respondents 7 to 9 resulted in a decree of dissolution [Decree No.980/2023 dated 27.04.2023]  of the Archdiocese of Thrissur formally dissolving the said congregation and holding that the said congregation including its postulants and candidates will have no rights, privileges and duties under the Archdiocese of Thrissur, and further that respondents 7 to 9 are free to join other Institutes of Consecrated Life [Monasteries/Orders/Congregations etc.]  as per their choice and the laws of the Church. It is further stated that an appeal preferred by the 7th respondent  before  the  Dicastery  for  the  Eastern  Churches  in  Rome  was dismissed by the appellate authority, and the decision of the Archdiocese of Thrissur was upheld. Under the changed circumstances therefore, the petitioners  believe  that  the  continued  association  of  their  daughters  with the “Monastery of Holy Ruah (MHR)” is not of their own free will but essentially under the coercion of respondents 7 to 9.

The petitioners placed reliance on the judgments of a Full Bench of this Court in K.N. Sadanandan v. Raghava Kurup and others - [AIR 1975 Kerala 2 [FB]] and a Division Bench of this Court in Dr. Lal Parameswar  v.  Ullas  N.N.  and  others  -  [(2014)  1  KHC  791  [DB]]  to contend  that  the  liberties  that  are  guaranteed  to  our  citizens  under  the Constitution,  cannot  be  stretched  beyond  limits nor  can  such  freedom  be made weapons to destroy our fundamental values or social establishments like  families,  which,  undoubtedly,  concede  authority  on  parents  to  advise and guide their children even if they have attained the age of majority. It is contended that this court should not accept as a  general principle that parents are, in all circumstances, bound to concede absolute decisional autonomy  to  their  children,  even  if  they  have  attained  majority  and  that they remain helpless even in situations where their wards have taken wrong  and  immature  decisions,  which  will  be  disastrous  not  only  to  the wards themselves, but also to the family concerned. As regards the instant case, it  is the  case  of  the petitioners that their  daughters have  not taken into consideration relevant facts and have been unduly influenced by respondents  7 to  9 to  embrace  the  grueling  rituals  that  are  expected  of members  of the  said  congregation, which are  ultimately  not  in  the  best interests of their daughters and the family of the petitioners.

We have heard the learned senior counsel Sri.George Poonthottam, assisted by Sri.Thomas J. Anakkallunkal, the learned counsel for the petitioners and also Sri.K.A.Anas, the learned Government Pleader for  the  respondent/State. In  the  nature  of  the  order  that  we  propose  to pass, we do not deem it necessary to issue notice to respondents 7 to 9 in the writ petition.

The writ of Habeas Corpus is a writ that provides an extraordinary remedy which should not be permitted unless ordinary remedies have already been exhausted and proven to be ineffective. It is a discretionary remedy in the sense that the High Court has a discretion not to exercise the jurisdiction depending on the facts of the case. That said, it is trite that once the High Court finds that the detention alleged in the writ petition is illegal, the writ of Habeas Corpus would become available to the detenu as of right and cannot be withheld on the court's discretion  [Kanu Sanyal v. District Magistrate, Darjeeijng - [AIR 1973 SC 2684]] and Somprabha Rana and others v. State of Madhya Pradesh and others - [(2024) 9 SCC 382]. The United Kingdom Supreme Court in Rahamtullah  v.  Secretary  of  State–[(2013)  1  All  ER  574]  observed that an applicant for a writ  of Habeas Corpus must demonstrate that the respondent is in actual physical control over the body of the person who is the  subject  matter  of  the  writ,  or  that  there  are  reasonable  grounds  on which it may be concluded that the respondent will be able to assert that control. It is trite therefore that except in the cases of minors or persons otherwise incapacitated to give their consent in relation to matters affecting their life, this Court would have to look at cases where the alleged detenu is above the age of majority with due circumspection, for it cannot ignore the individual autonomy that a citizen of this country enjoys when it comes to exercise of his or her fundamental rights under the Constitution. As  was  observed  by  the  Supreme  Court  in Navtej  Singh Johar and others v. Union of India - [AIR 2018 SC 4321],  “autonomy is individualistic. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy willfully to another individual and their intimacy in privacy is a  matter of their choice. Such concept of identity is not only  sacred but is also in recognition  of  the  quintessential  facet  of  humanity  in  a person's  nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual.” While observing as above, in the context of determining the legality of one's choice in matters of  sexual  orientation,  the  Supreme  Court  was  only  following  the  general principle that it had already laid out in the earlier decisions in K.S. Puttaswamy  and  another  v.  Union  of  India  and  others  -  [(2017)  10 SCC 1] and Common Cause (A Registered Society) v. Union of India and another - [(2018)  5 SCC 1]. In  Puttaswamy [supra], the  court observed that “the autonomy of the individual is the ability to make decisions on vital matters of concern to life. The intersection between one's mental integrity and privacy entitles the individual to freedom of thought,  the freedom to  believe  in what is right, and the freedom  of self-determination. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual.” In Common Cause [supra],  the  court  went  on  to  observe  that  “our  autonomy  as  persons  is founded on the ability to decide on what to wear and how to dress, on what to eat and on the food that we share, on when to speak and what we speak, on  the  right  to  believe  or  not  to  believe,  on  whom  to  love  and  whom  to partner, and to freely decide on innumerable matters of consequence and detail  to  our daily  lives.” The strength of  our Constitution  was therefore found to lie in the guarantee which it affords under Article 21 thereof that each individual will have a protected entitlement in determining, inter alia, what to believe or what not to believe.

In Shafin Jahan v. Asokan K.M. and others - [(2018) 16 SCC 368], the Supreme Court, while reversing a judgment of this Court, observed  that  the  superior  courts,  when  they  exercise  their  jurisdiction, parens patriae do so in the case of persons who are incapable of asserting a free  will  such  as  minors  or  persons  of  unsound  mind. The  exercise  of that jurisdiction should not transgress into the area of determining the suitability  of  partners  to  a marital  tie,  for  that  decision  rests  exclusively with the individuals themselves. It was held that neither the state nor society can intrude into that domain and the strength of our Constitution lies in its acceptance of the plurality and diversity of our culture. As upholders of constitutional freedoms, it is the duty of the court to safeguard  these  freedoms  that  are  recognised  in  citizens,  and  courts  are duty  bound  not  to  swerve  from  the  path  of  upholding  our  pluralism  and diversity as a nation.

In our view, the choice of the alleged detenus with regard to their beliefs or the congregation that they must join is a matter that rests exclusively within the private domain of the individual concerned. Interference  by  the  State in  such matters would have a  chilling effect on the exercise of constitutional freedoms by the individual concerned. It is therefore  that,  as  the “sentinels on the qui vive”, this  Court  must  tread with caution when called upon to issue writs in the nature of Habeas Corpus alleging illegal detention of the person for whose benefit the writ is sought. The court must look to the material produced before it and satisfy itself that there is some substance in the allegation that the respondent is in  actual  physical  control  over  the  body  of  the  person  who  is  the  subject matter of the writ petition or that there are reasonable grounds on which it may be concluded that the respondent will be able to assert that control. For reasons that  are  to  follow, we  do not  find  any  such material  in the present writ petition.

The averments in the writ petition indicate that the alleged detenus  are  all  educationally  qualified  and  there  is  no  reason  to  suspect that  they  were  acting other  than  of  their  own  free  will  while  choosing  to join the congregation of respondents 7  to 9. Interestingly, the documents produced along with the writ petition indicate that there was some discord between the Archdiocese of Thrissur on the one hand and the Monastery of Holy  Ruah  (MHR)  on  the  other,  pursuant  to  which,  the  former  has,  by  a decree, declared the dissolution of the latter from the Archdiocese of Thrissur. The petitioners before us are apparently members of Church(es) coming under the Archdiocese of Thrissur, and it appears to us that their anxiety is with regard to their daughters having joined a congregation that, at present, is not spiritually aligned with the ideologies of the Archdiocese of Thrissur. However, that by itself cannot be a reason for us to  ignore  the  agency  inherent  in  the  alleged  detenus  that  informed  their decision to join the Monastery of Holy Ruah (MHR). We have also not been shown any material that would suggest that the daughters of the petitioners are being detained by respondents 7  to 9, who are Nuns, who have taken their  holy  vows and embraced a  life  of spirituality. The mere disgruntlement of a parent with the decision of his adult daughter, who has chosen a life of celibacy by responding to the call of the Divine, cannot be the basis for the issuance of a writ of Habeas Corpus. Further, in the light of the judgment of the Supreme Court in  Puttaswamy  [supra] and later cases, the case law relied upon by the petitioners cannot come to their aid in maintaining this writ petition.

We also believe ourselves to be justified in coming to this conclusion in the light of a report that has been given to us by the Government Pleader, and which we have taken on record, which states that on enquiries made by the Police authorities with the alleged detenus, they have  given  signed  statements  reiterating  that  they  are  continuing  in  the holy  order  of  their  own  free  will  and  that  there  is  no  coercion  or  undue influence  exerted  on  them  by  respondents  7 to  9. We  therefore  see  no reason to entertain this writ petition. The writ petition fails, and is accordingly dismissed.