Court: In Supreme Court of India Citation: 2018 (4) Scale 404 Equivalent Citation: AIR 2018 SC 357 Judges: Dipak Misra, D.Y. Chandrachud & Ajay Manikrao Khanwilkar Case No: Crl.A 366/2018 (arising out of SLP (Crl.) 5777/2017) Appellant: Shafin Jahan Respondent: K.M. Ashokan & Ors Date of Judgement: 08/03/2018
BRIEF FACTS OF THE CASE:
- Ms. Akhila alias Hadiya the only child of Sh. Asokan K.M., and Smt. Ponnamma, had completed a degree in Homeopathic Medicine, BHMS (Bachelor of Homeopathic Medicine and Surgery) from Shivaraj Homeopathic Medical College, Salem in Tamil Nadu. Hadiya alias Akhila converted to Islam during her medical studies in Homeopathy (BHMS).
- On 6th January 2016, Mr. K. M. Asokan filed a complaint before S. P. Malapuram District, but there was no progress made by the police in the investigation of the matter, Mr. K. M. Asokan filed a Writ Petition of Habeas Corpus before the division bench of High Court of Kerala alleging that Hadiya alias Akhila went missing.
- During the course of the proceedings, Hadiya alias Akhila appeared before the Kerala High Court and asserted that she had accepted Islam as a faith of choice not by force.
- From 7th January 2016, she resided at the establishment of Sathyasarani Education Charitable Trust at Malappuram. On 19th January 2016, the High of Kerala permitted her to reside at the Sathyasarani Trust premises based on the interaction with her, that she was not under illegal confinement.
- Seven months later, Mr. K. M. Asokan filed another Habeas Corpus petition alleging that Hadiya had been subjected to forced conversion and was likely to be taken out of the country.
- Later Hadiya alias Akhila appeared before the court and declined to accompany her parents and expressed her desire reside at Sathyasarani. She also stated that allegation that she was likely to be taken out of the country was incorrect and contented that she don’t even have passport.
- On 21 December 2016, the High Court was informed that Hadiya and Shafin Jahan had entered into a marriage on 19 December 2016. The High Court recorded it as “absolute dissatisfaction at the manner in which the marriage if at all one has been performed has been conducted”.
- On 24th May 2017, High Court of Kerala annulled the marriage of Shafin Jahan and Hadiya and stated that marriage is only a ‘sham’ and no consequence in the eyes of law. The court exercising its Parens Patriae Jurisdiction and concerning the welfare of the girl stated that ‘A girl aged of 24 years is weak and vulnerable and capable of being exploited in many ways’.
- Further the High Court stated that it is the duty cast on the court to ensure safety of the girls who are brought before it and it can be ensured by only ensuring that Ms. Akhila alias Hadiya is in safe hands. The High Court further allowed her to complete her House Surgeoncy Course at a college where she was a student, in Salem.
- The court granted Mr. K. M. Ashokan custody over Hadiya alias Akhila by ignoring the actual fact that Hadiya, a legal adult and mentally stable, did not consent to parental custody. Subsequently, Hadiya’s husband Shafin Jahan approached the Supreme Court challenging High Court decision.
ISSUES OF THE CASE:
Whether the High Court has the power to annul the marriage of an adult under Article 226 of Indian Constitution?
- Writ of Habeas Corpus
- Doctrine of Parens Patriae
- The appeal filed by Shafin Jahan against the order of the Kerala High Court and Hadiya is a party to these proceedings.
- Appellant contended that since Hadiya is a major (above the age of 18 years), she has a full right to take her own decision in matters related to marriage. According to the prescribed law in India she has full filled all the conditions prescribed under the law.
- According to the Article 226 of the Indian Constitution, High Court can exercise the parens patriae doctrine when the person belongs to the vulnerable adult for reasons such as constraint, undue influence, coercion, or other vitiating factors incapable of making any relevant decision, or if a person disabled from making a free choice, or incapacitated or expressing a real and genuine consent.
- A vulnerable kind of the people which even though they do not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction.
Bench: (CJ) Deepak Mishra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud
The Bench of three judges pronounced the operative part of its order on 8 March 2018 by considering the arguments advanced on both side, Supreme Court allowed the appeal and set aside the order passed by the High Court of Kerala and also stated that Akhila alias Hadiya is at the liberty to pursue her future endeavors according to law.
Further Supreme Court clarified that the investigation by the NIA (National Investigation Agency) in respect of any matter of criminality may continue in accordance with the law.
State of Orissa v Ram Chandra Dev and Mohan Prasad Singh Deo[i], in this case the court held that under Article 226 of the Constitution, the Jurisdiction of the High Court is very wide, clearly indicates that before a writ an appropriate order can be issued in favour of a party, the party must have the right and the said right is illegally invaded.
In Justice K S Puttaswamy v Union of India[ii], In this case the Court held that the ability to make decisions on matters close to one’s life is an inviolable aspect of the human personality ans the court further contented that the family, marriage, sexual orientation and procreation are all intergalactic to the dignity of the individual.
Soni Gerry v Gerry Douglas[iii], in this case held that daughter of the appellant and respondent is major and expressed her desire to reside in Kuwait and she is entitled to exercise her choice and freedom. As long as the choice remains, the courts cannot assume the role of Parens Patriae.
A Regd. Society v Union of India[iv], the court held that Our autonomy as persons is founded on the ability to decide, on the matters what to wear and how to dress, on when to speak and what we speak, on what to eat and on the food that we share, on the right to believe or not to believe, on whom to love and partner, and to freely decide on matters of consequence and detail to our daily lives.”
In this case Heller v. Doe[v] High Court exercised the Parens Patriae Powers, while Justice Kennedy speaking for the U.S. Supreme Court observed that the State has a legitimate interest under its Parens Patriae powers in providing care to its citizens who are unable to care for themselves.
In Lata Singh v State of UP[vi], judges took judicial notice of the harassment, threat and violence meted out to young women and men who marry outside their caste or faith. In this case the court observed that India is a free and democratic country, once a person become major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve such marriage they can cut-off social relations, but they cannot give threats or commit or instigate acts of daughter.
Hadiya and Shafin Jahan are adults. Under Muslim law, marriage or Nikah is a contract, it recognizes the right of adults to marry by their own free will. Marital status is conferred through legislation and custom but deprivation of marriage must be strictly in accordance with the law.
In this case, the court observes that the High Court of Kerala has committed an error of jurisdiction and order. The State, rather than to facilitate the legal right of the citizen, has supported the cause of a father who is not allowing his daughter to make her own choice. The High Court of Kerala based on some kind of assumption, in the exercise of its jurisdiction under Article 226 of the Indian Constitution and Parens Patriae power has annulled the marriage.
High Court annulled the marriage on the view that Hadiya alias Akhila is of twenty-four years old and she is weak and vulnerable and capable of being exploited in many ways, in spite of she is major, sound mind, capable of taking her own decisions and also entitled to the rights recognized by the Constitution. In the case of Heller v. Doe, it was clearly stated that State can exercise Parens Patriae powers in providing care to its citizens who are unable to care for themselves but in this case, Hadiya alias Akhila is major and of sound mind, who is capable of taking her own decisions.
The Writ of Habeas Corpus has always been considered as a great constitutional privilege. The purpose writ is meant to provide an effective remedy against the illegal detention that affects the rights or freedom of the persons who is confinement and to obtain the production of an individual. The exercise of the jurisdiction to declare the marriage null and void, while entertaining a petition for habeas corpus, is plainly in excess of judicial power.
The High Court has transgressed the limits on its jurisdiction in a habeas corpus petition. In the process, there has been a serious transgression of constitutional rights.
The view of the High Court have encroached into a private space reserved for men and women, Neither the state nor the law can dictate a choice of partners or limit the free ability of each person to decide upon these matters.
The Constitution recognises the liberty and autonomy in each individual, this include the ability to take decisions which was clearly delivered in the case A Regd. Society v Union of India. Right to marriage of her own choice and Right to practice any religion is an integralpartof Fundamental Rights which is enshrined in Article 21 and Article 25 of the Indian Constitution and also Article 16 of the universal Declaration of Human Rights (UDHR) stated the fundamental importance of marriage as an incident of human liberty, here Hadiya alias Akhila has converted into other religion and married the person of her own choice.
So, she is at the liberty to pursue her future endeavors according to law and the Supreme Court has set aside the order passed by the High Court and safeguard the freedom of the citizen.
As per the eyes of Indian law, a girl above the age of 18 years has the right to choose the person of her own choice. Neither the state nor society can intrude into that domain. The strength of our Constitution lies in its acceptance of the diversity of our culture. Intimacies of marriage, including the choices which individuals make on whether or not to marry a person and on whom to marry, lies outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms and rights of the citizens.
[i] AIR 1954 Original 97
[ii] WP (C) 494/2012
[iii] (Crl.) No. 6237/ 2017
[iv] (CIVIL) NO. 215 OF 2005
[v] 509 U.S. 312 (1993)
[vi] Writ Petition (Crl.) 208 of 2004
AUTHOR: S. JEEVITHA | COLLEGE : SAVEETHA SCHOOL OF LAW
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