Supreme Court, Division Bench

Honorable Justice Mr. Kalyan Shrestha Honorable Justice Mr. Girish Chandra Lal Order Writ No. 069-WH-0030 1 Subject: including Habeas corpus

Ms. Prem Kumari Nepali of Dhunkharka VDC Ward No. 15 in the District of Kavrepolanchowk now residing at Lazimpat of Kathmandu Metropolitan City (KMC) Ward No. 2 in the District of Kathmandu on behalf of Rajani Shah, a resident of Swayambu at KMC Ward N. 15 .1

Petitioner

Versus The National Women Commission (NWC), Bhadrakali Plaza, Kathmandu ..........................................................................................1 Maiti Nepal, Gausala Pinglasthan Tilganga, Kathmandu.1 Mr. Pradip Shahi, son of Padam Shahi living at Swayambu-Badegal of KMC Ward No. 15 in the District of Kathmandu.1

Opponents

The writ-petition as produced here has been filed to this Court in accordance with Article 32 and Article 107(2) of the Interim Constitution of Nepal, 2007 the facts and orders in brief are as follows: As I, the petitioner was in a state of being incapable of expressing my natural sexual feelings and desire; I was wed-locked by my maternal household to Pradip Shahi, who is one of the opponents in this writ1

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Translated by Advocate Tula Ram Gurung (Notary Public & authentic Translator) and reviewed by Advocate Hari Phuyal at Pacific Law Associates, Anamnagar, Kathmandu: Email: tularamgurung3@gmail.com & hariphuyal@yahoo.com

petition. During the conjugal life a daughter was also born to us. Since my natural sexual expression in line with sexual orientation goes well with a woman, so I feel dogged and comfortable with the physical and practical relation with a woman rather than with a man. During our conjugal life I exposed of this fact time and again of sexual orientation and likelihood of such natural state of mind to my husband-the opponent but to the contrary, I was usually demoralized and reprimanded once and again for various reasons, and was mentally tortured with traditional type of conservative psychoanalysis and upon using anti-social or bad language towards me often resulting in illtreatment; and so I was compelled to file a case of divorce to the District Court of Kathmandu on June 4, 2012 A.D., with a view to breaking away the matrimonial relationship between him and me. After filling the divorce case on the legal basis while I was engaging in the natural sexual relation with Ms. Prem Kumari Nepali of Dhunkharka VDC Ward No. 15 in the District of Kavrepolanchowkwho is now residing at Lazimpat of Kathmandu Metropolitan City (KMC) Ward No. 2 in the District of Kathmandu I was threatened of my life and intimidated by the opponent-husband and on his behalf; and so I was compelled to take shelter at a Non-Governmental Organization (NGO) namely Mitini Nepal which was indeed established for the motivation of homosexuals communities and protection of such sexual orientation and likelihood. Since, during my stay over there, my opponent-husband used to go to the Office of Mitini Nepal and threatened me in every ways and the shelter providing institution; moreover, he misused police administration against me which impeded my right to free movement; therefore, I moved to the Appellate Court of Patan for filing a writ-petition on Sept.2, 2012 A.D wherein I sought an interim order from the court including injunction against them. Consequently an interim order was issued in favor of me in which the court upheld that I, the petitioner should not be prevented illegally from free movement and not be arrested on any pretext but be facilitated in freely choosing my profession as per the law. Once while I appeared at District Court of Kathmandu on the divorce case with the opponent-husband; I, the petitioner was abducted by him from the court premise and confined to his custody upon intimidation in various ways preventing me from free movement, and maneuvering various acts against me such as forcing me to stay with the opponentRajani Shah v. National Women Commission et.al: Supreme Court Verdict, Writ No. 069-WH-0030

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husband against my will. Furthermore, a joint meeting of representatives from different NGOs, Human Rights Commission, District Police Office (DPO), including the opponent-the National Women Commission (NWC) was also held on Sept.7, 2012 with a view to finding a safe home for me, the petitioner Rajani Shahi; as a consequence of the decision I was managed to be sent to the Sanctuary of Kavre for living by the opponentthe National Women Commission along with its correspondence and Nepal police guard. I stayed over there for some time, whereas the opponent-the National Women Commission again sent me to another opponent-Maiti Nepal for the custody, where I am not given opportunity of contacting outside and of making appointments with others since the last two monthsor, I am confined as a detainee over there and so devoid of leading a life as per my natural sexual feelings, and of enjoying fundamental legal rights as conferred upon by the prevailing law; therefore, I am compelled to lodge this writ-petition to this Court today on Oct, 30, 2012 A.D.) that Habeas corpus, including other appropriate order should be issued in accordance with Article 107(2) of the Interim Constitution of Nepal, 2007 in order that I, the petitioner could be released from such custody and let me have free movement from and to and that I could lead a life as per my natural sexual feelings. On this, what has happened? Why should the order as demanded by the petitioners not be issued? In this regard, an order was issued by this Court on 31/10/2012 stating that reasons and legal grounds should be produced before the Bench on 04/11/2012 A.D. along with the detaineeif any, and a copy of written petition along with this order be served to the respondents for written replies within the time as per laws; and the date of submission be fixed on the same date or on 04/11/2012 A.D. In response to the writ-petition, Maiti Nepal states that the institution was indeed initiated for eradicating social evils that existed long in the society, so it cannot be imagined of being involved in such illicit act by this institution itself. This institution was established and has been now operating simply driven by sincere social instincts; so the writ-petition which is based on imagination and unfounded, is prima facie voidable. While the petitioner Rajani Shahi fell out with her family triggering a dispute, and applied for her security; a meeting of representatives from this National Women Commission (NWC) and from those NGOs and her
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family-members was held to consider her destinywhich determined to send her to a women rehabilitation center (WRC) operated by Women and Children Office, but it was again complained to this NWC by her relatives that necessary counseling and security could not be provided to her over there; therefore, this institution-Maiti Nepal had been asked to keep the petitioner in custody at the special request by the NWC pursuant to the letter No. 1/012/13 Ref. No: 356, dated on 12/09/2012 A.D. This was simply done for her protection and welfare. In case the petitioner Rajani Shahi does not want to stay at the shelter, this institution cannot keep her forcefullyor, there is no objection of her release to this institution. For the issuance of an order of Habeas corpus from the Court, it is required that the detainee should have been confined to the custody against her will; and that such act be done unlawfully. Over this issue the petitioner could not have claimed that she was detained or taken into custody unlawfully. We have no concern over whatever relation is existed or not between Ms. Prem Kumari and the petitioner. We have neither confined her in unlawful custody, nor have such intention. Simply the shelter has been provided to the petitioner by this institution at the request and recommendation of the National Women Commission (NWC). This institution has not infringed upon her fundamental and humanitarian rights. This writ-petition is filed with a view to defaming this institution. Since the issuance of an order of Habeas corpus from the Court requires some prerequisites, so it is demanded that the writ-petition lacking so should be quashed. Similarly, the written reply by the National Women Commission (NWC) reads: A letter was received to this NWC by OREC Nepal on 04/07/2012 A.D. that Rajani Shahi was staying at rehabilitation center managed by OREC Nepal after the divorce case was filed against her husband-Pradip Shahi, and the first date was given on 04/07/2012 A.D. by the court of instant, and they were to appear at court and a talk could be made over the case with her family members on the given date; and whereas the petitioner was abducted by her husband and maternal sides from the court premise without any talks; and consequently she sought protection of human rights as well as security or safety of her and her daughter. The
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event was acknowledged to the Metropolitan Police Range of Hanumandhoka on 06/07/2012 A.D. and the fact was subsequently demanded from the police. On this, therefore, the institution-Mitini Nepal on behalf of the petitioner demanded to this NWC that she be immediately released of the unlawful detention and be guaranteed the right to free movement to her. On the petitioner's demand, her father and uncle were summoned on 26/07/2012 A.D by this NWC and they had to produce the petitioner before this NWC by a bond-deed on 13/08/2012 A.D. scheduled for talks vis-a-vis her state of affairs. In this context, it may be worth-recalling that the Hanumandhoka Police Range Office, Kathmandu sent a letter to the NWC on 25/07/2012 A.D. stating that the petitioner Rajani Shahi was taken into custody by her own husbandPradip Shahi and other members of her family including her father and uncle, and appeared again for talks at the police office and hence agreed to staying at family-household with her free will and consent without any coercion. As the petitioner Rajani Shahi appeared on 23/08/2012 at this NWC for talks vis-a-vis her destiny pursuant to the bond-deed so made by her father and uncle, she was then recommended to consult to C.M.C Nepal at Thapathali for psycho-social counseling. But, again while Rajani Shahi made an application to this NWC on 27/08/2012 asking for the safety or security of her life and a shelter, a correspondence was made to District Administration Office (DAO) for the purpose. In the course of finding a shelter for the petitioner Rajani Shahi, she was sent to rehabilitation center of Dhulikhel pursuant to a decision of a joint meeting of representatives from Nepal Police, NGOs, National Human Rights Commission or other organizations working in the field of human rights, National Women Commission (NWC), Rajani Shahi attending it by herself as well as her family or other relativeswhich was held on Sept. 6th and 7th, 2012. Upon surveillance and monitoring of the shelter/facility by this NWC from time to time, she was rehabilitated at Maiti Nepal. Since she is not actually confined in detention over there, but in keeping view of the security-priority of her life and that she has no other place for taking refuge, and further that her divorce case was subjudice at court; the shelter was therefore sought for the petitioner for the sake of her welfare on her own demand and in the initiative of this NWC. It is therefore the
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plea as taken by the petitioner is completely false and so the writ-petition is voidable. The service-executor (tameldar) reported that the summon to one of the opponents namely: Pradip Shahi could not be served because the person could not be found out in the particular address. The writ-petition, in accordance with today's cause list, after making the study, is submitted to this Bench as per rule for judgment; and during the hearing of the case learned advocates duoMr. Milan Kumar Rai and Mr. Hari Phuyal on behalf of the writ-petitioner pleaded that: Even though the said-detainee Rajani Shahi was wed-locked to one of the opponentsPradip Shahi, and as she has no sexual attraction towards the male, she cannot be accustomed to matrimonial cohabitation with her husband upon intimidation; and so being very frightened by a terrible situation, she filed a divorce case against her husband-the opponent at District Court of Kathmandu (court of first instant). But, while following the given date at court, the petitioner Rajani Shahi was detained by the opponents including her husband and so shelter was sought at an institution namely Mitini Nepal but the petitioner has been confined to another place like a detainee at Maiti Nepal in collusion with the opponents on the recommendation of the National Women Commission (NWC) without letting her the opportunities of appointments with others. Since the freedom of a person cannot be violated in the name of custody or shelter; therefore, the petitioner Rajani Shahi should immediately be released from the surveillance from Maiti Nepal. On behalf of the Opponent-the National Women Commission (NWC), learned Advocate deputy attorney Mr. Surya Prakash Adhikari contended that the NWC sent petitioner Rajani Shahi to the rehabilitation center belonging to Maiti Nepal for the safety or security and the welfare of the petitioner. In the divorce case against her husband, the petitioner Rajani Shahi begged for a stay at this institution until and unless the divorce case could be settled by the court. Since she has been provided custody or shelter at Maiti Nepal, so it is evident that the NWC has not confined her to the institution to serve her detention at Maiti Nepal but to the contrary, she has been there at her own will and consent on her own
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request. Therefore, there exists no situation, where any kind of order could be issued from the Court. Further, pleadings by advocates' duo: Ms Sajani Joshi and Ms Uma Tamang on behalf of Maiti Nepal were also heard. They pleaded that the institution has not confined Rajani Shahi as a detainee, but for her own protection on the request of the NWC; and the allegation that Maiti Nepal has barred her in making appointments with anyone she likes is completely false. And that she could go at any time upon completing due process as per the law. Therefore, in this case there exists no situation, where any order could be issued from the Court. After the study of the file, pleadings by both sides' learned legal professionals were also heard. In considering the fact in issue from the file, primarily it is found that the petitioner was wed-locked by her maternal household to Pradip Shahi in the state when she could not express her natural sexual feeling and desire in line with her sexual orientation; and even though a daughter was also born to them, her natural sexual mentality goes well with a woman, so the petitioner Rajani Shahi was dogged and comfortable with the physical and practical relation with a woman rather than with a man; and despite exposure to such sexual orientation and likelihood of her natural state of mind, she was confined mentally tortured by her husband upon intimidation and was compelled to file the divorce case with the opponent-husband at court with a view to breaking away the matrimonial relationship between him and her; and whereas she was making relation with Ms Prem Kumari Nepali at the time and was following the given date at the court, the petitioner Rajani Shahi was abducted by the opponenthusband and intimidated her that she should stay with him. Although the petitioner Rajani Shahi was sent to a shelter of Kavre by a decision of the joint meeting held on September 7th, 2012; the opponents including the NWC detained her at Maiti Nepal by not letting her opportunities of appointments with mates of her choosing for the last two months; therefore, the petitioner is found to have sought the issuance of an order of Habeas corpus in the name of the opponents in this regard. Furthermore, before releasing her from the said-detention by issuing an order of Habeas corpus as mentioned in her writ-petition, here now comes also a considerable question to be settledwhether it is admissible

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to issue an order over the question that she could live with her female mate of choice or not. There is no debate on the fact that the said-detainee Rajani Shahi was wed-locked with one of the opponents-Pradip Shahi. As mentioned by the petitioner, she has filed the divorce case with her husband because of the fact that she has had her sexual feelings or desire with a female rather than with a male. Although male and female are both human beings, there is no question that there are indeed specific differences in the physical structure between them. It is a established social norm that marriage is solemnized between heterosexuals or between male and female whereby lineage of human beings shall be held up through sexual intercourse. However, modern social trends, norms and values, customs and culture are gradually dragging us along with human civilization and the development of freedoms. Even though marriage is traditionally a established bond of lineage of life between man and woman, there is developing another trend of co-habitation between mates of homosexuals as partners with or without solemnizing a marriage, or even of living separately. When they are born, human beings may be male or female on the basis of genitals, but on the basis of sexual orientation it is found that they are attracted with homosexuals male to male and female to female instead of male to female or female to male; or in some cases they may be involved in different ways if their genitals are not developed. The master of one's body is himself/herself and how to use one's body for the purpose of sexual intercourse is subject to his/her autonomy; so the society or the state does not require intervening and regulating over this issue. In the enjoyment of those personal freedoms of rights or autonomy, there may be clashes or apparent situation of clashes between their interests; then the question of control and regulation may be raisedit could be next issue. Even though the physical ID may be different on the basis of genitals, there may be different sexual behaviors, acts or actions on the basis of sexual orientationwhich cannot be prohibited or be prevented from being occurred. Either you possess any physical organs or not, their acts or actions could be the same or otherwise; however, they do not affect on the persona for being a human or in the enjoyment of those rights to be emanated in different capacities those organs and their acts or actions could be regarded as their special traits. And so they do not

create any inability to such personsbut it is indeed their natural right for the enjoyment or practice thereupon. In considering of all these issues in the light of international context, the approaches on the sex are found to have been displaced by new trends and developed in later days in different countries resulting in ramification on different legal systems across the world. Some legal systems have recognized those homosexual behaviors or the marriage between homosexuals whereas some are seeking adjustments of those approaches in between them. Granted that, however issues such as matrimonial relation, sexual offences, family systems, among others, are the subjects to be determined by national laws; the laws on the family, marriage or in the context of homosexual relation have also been going to be developed specifically in line with national culture, civilization and the level of developments of a country. Despite this, before deciding over such issues; it is imperative to develop national laws by many countries across the world by adopting norms or standards of human rights as envisaged by the international instruments on human rights e.g. Covenants/Convention and declaration, to which many countries including Nepal are signatories. In the context that there is no negative approach or norms towards the issues of homosexuals or sexual orientation by the international treaties/conventions or covenants on human rights; it is required to develop them in line with norms of human rights in the right and desirable adjustments of national laws in order to comply with them. As a ramification of the trends of liberalization in approaches relating to sexual relation as perceived in the society, significant openness has come about even in the traditional heterosexual relation; whereas on the other, new trends of sexual orientation including homosexuals relation have been taking places in the society. Its consequence is yet in the familial or in the partnership form; the trend on the contractual basis is soon going to govern the society. Despite in minimal now in the society, it is a new and developing trend in the society to which no one could eschew its relevancy in the national laws. Now let us consider over the issue in the context of Nepal. While looking into the current constitutional provisionswhether or not there is any legal complication in the prevailing laws; the Interim Constitution of Nepal, 2007 is not found to have made any discrimination in the implementation
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of rights between or among homosexuals, heterosexuals, third gender or transgendered. In sub-Article (1) of Article 12 under Right to Freedom, it is stipulated that, "Every person shall have the right to live with dignity.", whereas in sub-Article (2) personal liberty is guaranteed that reads as: "Except as provided by law no person shall be deprived of his/her personal liberty." Further, in sub-Article (3) of the same Article mentioning that "Every citizen shall have the following freedoms;" so in 3(e) of those 'following' freedoms, it is stated of 'freedom to move and reside in any part of Nepal.' Similarly, sub-Article (1) of Article 13 under Right to Equality reads: "All citizens shall be equal before the law. No person shall be denied the equal protection of laws;" and sub-Article (3) declares non-discrimination among persons which reads: "The State shall not discriminate among citizens on grounds of religion, race, caste, tribe, gender, origin, language or ideological conviction or any of these." Regarding the lively execution of those rights as envisaged in the constitution, there are no any restraints on the right to women before or after marriage. Since nowhere is provisioned in the constitution that the rights in the case of homosexuals shall not be invoked; so it is found that there is no any constitutional restraint on the rights of homosexuals; and that those rights as conferred by the constitution shall be exercised on equal basis by whatever sorts of persons they belonged to: male, female, homosexuals or third gender or transgendered in order to comply with the constitution and the prevailing laws. In addition to the aforesaid constitutional provisions, while looking through the context of personal liberty, there is no any specified provision on the Chapter of Marriage of the Muluki Ain (National Code of Nepal) regarding the liability of wife where she is subject to stay with husband compulsorily after the marriage. Wife may take decision of her destiny as to how to make her livelihood or to spend different modes of her life at her free will or may live freely in different circumstances of her life with or without taking partition, or making divorce with husband. There are many provisions on matrimonial laws which shall be effective in this regard. The significance of marriage and their customs could be different depending upon ethnicities or tribes, religions and cultures. But, the significance of solemnizing a marriage as per prevailing laws is to establish a spousal bond between husband and wife. That does not however mean the contraction of one's personal liberty. The objective of
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solemnizing a marriage between husband and wife is also to lead their future life in matrimonial co-habitation. But, whereas spouses cannot live together with each other as per their social bond, and a situation comes when they cannot live together; it cannot be maintained on the legal basis that the power of restraining personal rights and liberty of one's wife is solely vested in husband merely on the basis that she has been married to him. As an adolescenteither male or female, they may move freely from and to at their free will and consent unless there is any hindrance in the prevailing laws and social etiquette. This is their constitutional right as conferred upon by the constitution. Individuals can decide as to choosing their ways of living either separately or in partnership together with homosexuals or heterosexualswith or without solemnizing marriage. Although in the prevailing laws and tradition 'marriage' denotes legal bond between heterosexualsmale and female; the legal provisions on the homosexual relations are either inadequate or mute by now. In the state of those relations one has to acquire the rights against others, or to take accountability thereupon, it cannot be said anything as to how the devolution could be made until and unless the law provides comprehensive provision. In the situation when the law has not been developed on the homosexual relationship, how to address and regulate those issues wherein homosexual persons would like to lead different lives by their own decisions. Of course time has come the society is to find a constructive way out over those issues. In a situation when the prevailing constitution and the laws of the state have not prohibited the act (of relation), the issue of human rights shall come into priority rather than traditionally governing social norms. Similarly, if the act is not prevented by the prevailing laws, it cannot be admissible that people could be deprived of the enjoyment of rights in proximity with those rights conferred upon by the constitution merely because of social norms. In this context, everyone male or female (whether they could be homosexuals or heterosexuals) are entitled to exercise constitutional and legal rights on equal footing by the prevailing Interim Constitution of Nepal, 2007. In the writ-petition case of Certiorari, Mandamus and Prohibition, Sunil Babu Pant v. Government of Nepal Prime Minister's Office (PMO) and Office of Council of
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Ministers the principle has been established that: "No one is entitled to question how persons of having attained the age as provided for by law make sexual intercourse, and whether those intercourse is natural or unnatural." (Nepal Kanun Patrika in short NKP meaning Nepal Law Journal, 2008 (2065B.S.) No. 4 Decision No. 7958). Other persons should not have to take concerns over the rights to: privacy, secrecy and selfrespect of those persons having homosexual relationship. However, many questions could be raised as to whether the relationship is voluntary or not, whether there is sexual abuse in the relation or not, and whether any discrimination been made or not; and most importantly as to how support or assistance with each other and the liability of subsistence could be determined and how their private or joint property be distributed between them during the existence of their relationship; therefore, to this effect a support from a legal mechanism is required for addressing of all such issues. We accept and tolerate the existence of homosexual partnership in the society on one hand, with or without public documentation and don't go for a challenge against its legitimacy or practices; and whereas, on the other, we ignore of the troubles that come out of those relationship; it is evident that both these trends cannot go simultaneously. On this, it is not sufficient enough that the State has not intervened over the homosexual relationship; but it must be declared publicly and comprehensively through a legislation and strategic policy. It seems the troubles of those groups of personswhich has indirectly come in existence by now, should be addressed in an integrated way, and so it seems time has come to find its desirable extent. Notwithstanding the law on this relationship has not been developed in Nepal in the present situation; however, homosexuals as persons may exercise the right of self-determination as well as the right to secrecy under their fundamental and human rights. So, the State is not required to have intervened upon their rights which fall into internal use of their relationship. As perceived through this angle, the matters as to how to live with and to whom falls under the matters to be decided by individualpersons. As marriage is a legal issue, so if matrimonial relationship is to sustain, legal conditions for the marriage are required to fulfill with; whereas, on the other, merely the absence of law cannot bar living
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together without solemnizing a marriage. If the married couple violates the matrimonial law, it is natural that their consequences come out by it. If someone marries with a heterosexual person and while sustaining this relationshipif he/she would like to live with a homosexual person; then there comes surely a situation for a divorce or desertion. But, in the present state of affairs in this case, the offence such as polygamy could not be established. However, whereas such state of affairs is found oddly new but awful in the Nepalese society; therefore, there needs policy discourse and other requirements regarding legal mechanism, and the Government is also required to pay heed on this issue as well. In this context, keeping in view of the prevailing constitutional and legal provision and the aforesaid principleif the question of human rights is involved and in case a male or female would like to stay or to live with other homosexual woman or man, the court cannot bar him/her lawfully. In the present case, even though the petitioner has already been married, she would not like to continue her matrimonial life, but would like to stay or live with other person (who is not a male) at her free will; and if the marriage is to make active by separating from that person, now here comes a complementary question whether or not the petitioner could be separated from the relation of that person. While considering over the situation as to whether this said-detainee Rajani Shahi could be released by the order of Habeas corpus, the petitioner Rajani Shahi is found to have gone into the contact of her sexual orientation friendly NGO-Mitini Nepal because of the animosity with her husband and the alleged-detention. Similarly, as the written reply by the MWC states that: whereas on behalf of the petitioner Mitini Nepal also applied to the National Women Commission (NWC) demanding for immediate release from the unlawful custody/detention by her husband and maternal party and for the enjoyment of the freedom of movement; her father and uncle made a bond-deed on 26/07/2012 A.D. stating that they should produce the petitioner before the NWC on 23/08/2012 A.D for talks vis-a-vis her state of affairs, and correspondence was also made to the District Administration Office (DAO) by the NWC for her safety or security; furthermore, with a view to finding a safe home for the petitioner Rajani Shahi, she was sent to rehabilitation center of Dhulikhel pursuant to a decision of a joint meeting held on September 6th
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and 7th, 2012 A.D. and afterwards to Maiti Nepalstill staying there by now. From the file study, the petitioner Rajani Shahi is not found to have given her consent to stay at the rehabilitation center or Maiti Nepal. In the situation where the consent in express such as: "Me be sent to" is not found, there could be no final meaning or conclusion of such meetings, talks or decisions done by persons or other GO/NGOs over the question of personal freedom as to where an adolescent person is to be confined . Keeping into others' custody for an adolescent woman without her consent or demand in the name of her welfare by adopting aforesaid measures could be equivalent to taking into detention, which may arise a question yet to be settled. However, Maiti Nepal has contended that the petitioner Rajani Shahi was not taken into detention but was confined over there for the sake of her protection and rehabilitation and that she was not given any torture on coercion. Since in the written reply submitted by Maiti Nepal, it has asserted that Maiti Nepal is not a detention facility/center or equivalent to the detention center in order to control a person; and also that the institution is not found to have any authority of a detention center or equivalent to the detention center so as to control a person. In addition, it cannot be thought that the institution so dedicated to the rights and welfare of women or their development could act contrary to the law. Since in the given situation that Maiti Nepal as not being for a detention facility/center like that of a police custodyis found merely keeping the petitioner for the sake of her protection and control as per the recommendation of the National Women Commission (NWC); therefore, here comes now a considerable question as to whether an order of Habeas corpus should be issued or not. As the theme of the writ of Habeas corpus writ is indeed associated with personal liberty, under which it is examined whether the person is detained under detention against the law by restricting personal liberty. The term 'detainee' denotes a person taken under control in detention restricting the enjoyment of his/her personal right of freedoms as provided for by the prevailing constitution and the law. The 'control' is made under custody either by Security Agency, or any other persons or institutions (NGOs). In this context, the ramification of the term, 'detainee' is: not only to detain a person into police custody or detention center but includes the situationwherein any kind of 'control' and
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contraction of personal freedoms contrary to the law is imposed upon a person as equivalent to a prisoner. Whether it could be Security Agencies such as police office, public authority, or any other persons or GOs/NGOs; they do not possess the authority to control a person under custody contrary to the law. If a person is found thus detained, the writ of Habeas corpus shall be invoked in such a given situation. The said petitioner Rajani Shahi is not found taken under 'control' by Maiti Nepal itself. She has been sent to Maiti Nepal with a letter of the NWC. Even though Maiti Nepal has provided shelter to her in good faith and not found treated her as a detainee, Rajani Shahi is not willing to stay over there and as she replies before the Bench upon a query that she would like to live independently. Now the situation is clear that the petitioner Rajani Shahi would not like to extend her stay at Maiti Nepal: so it cannot be held that Rajani Shahi has been staying over there freely and voluntarily and that Maiti Nepal is also offering the service in good faith, and further importantly that she has been accepting the offer gratefully. As the petitioner has been sent to Maiti Nepal by the NWC, so Maiti Nepal is found to have been used for a means of 'control' over the petitioner to which she is unwilling and so she stated before the Bench that she would like to release from the bond of 'control' of Maiti Nepal. From the file-study, she is not found suffering from any kind of mental illness and addicted to drug abuse and is not required to make any treatment or reform thereto, and to confine her in 'control' as per rule and not liable to any punishment for indictment of any offence. It is clearly understood from the writ-petition and her statement made before the Bench that the petitioner is not willing to stay or live with her husband or matrimonial home. After she expressed her wish to stay with the person she wanted, she is found to have sought with an institution where she could find the person she 'wanted'. In the present case, her matrimonial family of course would like to save her from that institution and the person and to maintain the conjugal life. To this extent, there is no unlawful objection over their 'want' and in the course of shelter the National Women Commission (NWC) and Maiti Nepal got later involved in the case.

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Matrimonial relationship is not solely a person's want or necessity but is an institution addressing the want and necessity of both sexes. Even though the petitioner is the woman of having matrimonial relationship she has no attraction towards it. Of course this is an issue under the domain of her particularly personal interest and inviolable right. As perceived socially, such relationship could be splendid if maintained. But, if the concerning party is unwilling to do so; it cannot be admissible, for the welfare of her, to adopt even the benevolent 'control' by imposing a duress by any other person or institutions in the name of shelter or rehabilitation. In pursuing owns' interests and their furtherance, he/she is considered free and competent to seek necessary recourse thereof. If any support or assistance is appealed or required for him/her, others may support or assist him/her only in case of need. Support or assistance of course must not be intervening. In the given situation when a common and average competent person is not thinking of taking shelter to others by him/her; how the shelter or rehabilitation by other persons or institutions such as the National Women Commissions (NWC) or Maiti Nepal is so dreadful to a person. This is what the present case reveals clearly. As a person the decision to be taken by her is her particularly personal issue. If some legal and moral questions/problems emanate from that issue, their risks too are her own. She is free to deliberately make such decisions and is also responsible to bear legal or other consequences. In such case, nothing can be imposed upon her in the name of her own interests, social or familial welfare or morality. Matters such as assistance or security shall be pleasant and fabulous if they were appropriate; otherwise, they shall be transformed into intervention or coercionto which the petitioner herself has bitterly experienced in this case. In this state of affairs, although there is no question over the intention of the institutions such as the National Women Commission (NWC), Maiti Nepal, among others; the action could not be appropriate in line with her aspiration and so not be desirable. Hence, the shelter is found ultimately control-oriented. Whereas the restriction on someone's personal freedoms in any forms or in any ways either with good or bad intention and that kind of physical 'control' which is as equivalent to a 'detention'; therefore, the rehabilitative shelter so operated by the opponents: Maiti Nepal on the
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basis of the correspondence of the NWC and the aforesaid action so done by the NWC itself cannot not be justifiable on the legal basis. Therefore, on this ground the petitioner should immediately be released from such shelter. The meaning of the release by this Court should not be understood that the petitioner be compelled to go to her matrimonial home. It is already said above, since the matters such as: what life-mate she could independently choose in her prospective life, or to whom, what relation with or how long and in what ways she could spend her life, fall under her particularly personal matters; and that she could decide the relationshipwhether with homosexuals or others; therefore, there remains no ground for this Court to issue an order over these questions. And so, as a free person could take free decision by him/herself; therefore, the Court deems that this order cannot give directives otherwise vis--vis his/her relation of own choosing. Therefore, since on the considerations as mentioned above, the saiddetainee Rajani Shahi in the situation if she would not like to stay at Maiti Nepal but to live independently, there are no legal grounds and basis to force the petitioner to staying or living at Maiti Nepal, including other rehabilitation centers; therefore, in the context of the writ-petition, the said-shelter and 'control' as provided for her at Maiti Nepal on the directions of the National Women Commission (NWC) cannot be permissible to be continued. Hence, the Court deems that the petitioner Rajani Shahi should be immediately released by an order of Habeas corpus. By performing due necessary process the petitioner be immediately released and the inventory of the present case be removed from the list for execution, and the file be dealt with as per rules. Sd. (Mr. Kalyan Shrestha ) Justice We concur the aforesaid opinion. Sd. (Mr. Girish Chandra Lal ) Justice
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Bench Officer: Dipak Kumar Dahal Computer Setting: Bishwaraj Pokhrel

Done on Thursday the 11th Day of the Month of April of the Year 2013 A.D. (2069/12/29 B.S.)

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