In Supreme Court of India
Criminal Appeal no 366 of 2018
2018 (4) Scale 404
AIR 2018 SC 357
K.M. Ashokan & Ors
Date of Judgement
(CJ) Deepak Mishra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud
Hadiya Jahan who was originally Akhila Ashokan, converted to Islam during her medical studies in Homeopathy (BHMS) from Shivaraj Homeopathic Medical College, Salem in Coimbatore, Tamil Nadu. She then met a Muslim man named Shafin Jahan and married him at the age of twenty five.
Akhila’s father, Mr. K.M. Ashokan, when found about the marriage filed a complaint before S.P. Malappuram District, but as there was no progress made by the police in the investigation of the matter, Asokan moved a habeas corpus petition before the Division Bench of the High Court of Kerala alleging that Hadiya has been misled and forced to become a Muslim. He further alleged that Akhila’s husband had links to extremist Muslim organizations. His apprehension was that his daughter was likely to be transported out of the country. Hadiya maintained throughout the High Court proceedings that her conversion to Islam as well as her marriage to Shafin Jahan was of her own volition. Hadiya has filed an affidavit expressly affirming her conversion to Islam and her marriage to Shafin Jahan.
Hadiya appeared before the Kerala High Court and asserted that she had accepted Islam as a faith of choice. From 7 January 2016, she resided at the establishment of Sathyasarani Education Charitable Trust at Malappuram. On 19 January 2016, the Kerala High Court categorically observed that Hadiya was not under illegal confinement after interacting with her and permitted her to reside at the Sathyasarani Trust premises. Nearly seven months later, Asokan filed another petition in the nature of habeas corpus alleging that Hadiya had been subjected to forced conversion and was likely to be transported out of India. On 21 December 2016, the High Court was informed that Hadiya had entered into a marriage on 19 December 2016. The High Court recorded its “absolute dissatisfaction at the manner in which the marriage if at all one has been performed has been conducted”.
On 24th May, 2017, the High Court by the impugned judgment and order annulled the marriage and called it a ‘sham’ holding that the marriage is of no consequence in the eyes of law. The reasons given were that a girl aged 24 years is weak and vulnerable and capable of being exploited in many ways and so the Court, exercising the parens patriae jurisdiction, observed that it was concerned with the welfare of the girl of her age. It has been further observed by the High Court that the duty is cast on it to ensure the safety of at least the girls who are brought before it and the said duty can only be discharged by ensuring that the custody of Akhila alias Hadiya should be given to her parents. The High Court further allowed her to complete her House Surgeoncy Course and become professionally qualified so that she would be in a position to stand independently. And that since marriage being one of the most important decisions in life can also be taken only with the active involvement of her parents. Her husband had no authority or competence to act as the guardian of Ms. Akhila and to give her in marriage. Therefore, the alleged marriage is null and void. The court granted Mr. Ashokan custody over Hadiya and ignored the fact that Hadiya, a legal adult, did not consent to parental custody.
Subsequently, Hadiya’s husband approached the Supreme Court to challenge the annulment.
The appeal has been filed by Special appeal by Shafin Jahan aggrieved by the order of the High Court, dated 24th May, 2017 annulling his and Hadiya’s marriage.
Since Hadiya is a major, she can take her own decisions in matters related to her marriage.
When the major is a vulnerable adult, the High Court under Article 226 of the Constitution of India can exercise the parens patriae doctrine. The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for reasons such as constraint, coercion, undue influence or other vitiating factors incapable of making any relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. A vulnerable kid even though does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction.
Does the High Court have the power to annul the marriage of an adult under Article 226 of the Indian Constitution?
This Court believes that it is the duty of this Court, in the exercise of its constitutional functions to formulate principles in order to ensure that the valued rights of citizens are not subjugated at the altar of a paternalistic social structure and so observes that there have been grievous miscarriage of justice and the High Court of Kerala has committed an error of jurisdiction. The manner in which the liberty and dignity of a citizen have been subjected to judicial affront is disconcerting. When the liberty of a person is illegally smothered and strangulated and his/her choice is throttled by the State or a private person, the signature of life melts and living becomes a bare subsistence.
This court held that the order of the High Court is full of errors. The State that is expected to facilitate the enjoyment of legal rights of a citizen has supported the cause of a father, an obstinate one, who has endeavoured immensely in not allowing his daughter to make her own choice in adhering to a faith and further making efforts to garrotte her desire to live with the man with whom she has entered into wedlock. The thought itself is a manifestation of the idea of patriarchal autocracy and possibly self obsession with the feeling that a female is a chattel. The High Court on some kind of assumption, has not been appositely guided by the basic rule of the highly valued writ of habeas corpus and has annulled the marriage.
The writ of habeas corpus has always been considered ‘a great constitutional privilege’ or ‘the first security of civil liberty’. The writ is meant to provide an expeditious and effective remedy against illegal detention, for such detention affects the liberty and freedom of the person who is in confinement. The general purpose of this writ, is to obtain the production of an individual.
This writ as has been observed in the case of Secretary of State for Home Affairs v. O Brien is perhaps the most important and ancient writ known to the constitutional law of England, affording a swift and imperative remedy in all cases of illegal restraint or confinement.
The principle of habeas corpus has been incorporated in our constitutional law and in a democratic republic like India where judges function under a written Constitution and which has a chapter of fundamental rights to protect individual liberty, the judges owe a duty to safeguard the liberty not only of the citizens but also of all persons within the territory of India; and the same exercise of power can be done in the most effective manner by issuing a writ of habeas corpus.
Thus, the pivotal purpose of the said writ is to see that no one is deprived of his/her liberty without sanction of law. It is the primary duty of the State to see that the said right is not sullied in any manner whatsoever and its sanctity is not affected by any kind of subterfuge. The role of the Court is to see that the detenue is produced before it, find out about his/her independent choice and see to it that the person is released from illegal restraint.
In the instant case, the High Court, has been erroneously guided by some kind of social phenomenon that was frescoed before it. The writ court has taken exception to the marriage of the Hadiya and Shafin Jahan. There was nothing to be taken exception to. The adamantine attitude of the father, possibly impelled by obsessive parental love, compelled him to knock at the doors of the High Court in another Habeas Corpus petition whereupon the High Court directed the production of Hadiya who appeared on the given date along with the appellant herein whom the High Court calls a stranger. But Hadiya would insist that she had entered into marriage with him. The High Court took exception to the same even though it was absolutely unnecessary forgetting that parental love or concern cannot be allowed to fluster the right of choice of an adult in choosing a man to whom she gets married. And, that is where the error has crept in. The High Court should have, after an interaction as regards her choice, directed that she was free to go where she wished to.
The High Court further erred by reflecting upon the social radicalization and certain other aspects. In a writ of habeas corpus, especially in the instant case, it was absolutely unnecessary. If there was any criminality in any sphere, it is for the law enforcing agency to do the needful but as long as the detenue has not been booked under law to justify the detention which is under challenge, the obligation of the Court is to exercise the celebrated writ that breathes life into our constitutional guarantee of freedom. The approach of the High Court on the said score is wholly fallacious.
The principles which underlie the exercise of the jurisdiction of a court in a habeas corpus petition have been reiterated in several decisions of the Court. In Gian Devi v Superintendent, Nari Niketan, Delhi, Bench observed that where an individual is over eighteen years of age, no fetters could be placed on her choice on where to reside or about the person with whom she could stay: As the petitioner is sui juris no fetters can be placed upon her choice of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she should stay. The court or the relatives of the petitioner can also not substitute their opinion or preference for that of the petitioner in such a matter. The ambit of a habeas corpus petition is to trace an individual who is stated to be missing. Once the individual appears before the court and asserts that as a major, she or he is not under illegal confinement, which the court finds to be a free expression of will, that would conclude the exercise of the jurisdiction.
In Girish v Radhamony a two judge Bench of this Court observed thus: In a habeas corpus petition, all that is required is to find out and produce in court the person who is stated to be missing. Once the person appeared and she stated that she had gone of her own free will, the High Court had no further jurisdiction to pass the impugned order in exercise of its writ jurisdiction under Article 226 of the Constitution.
In Lata Singh v State of UP, Bench of two judges took judicial notice of the harassment, threat and violence meted out to young women and men who marry outside their caste or faith. The court observed that our society is emerging through a crucial transformational period and the court cannot remain silent upon such matters of grave concern. In the view of the court: This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is they can cut-off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.
In a more recent decision of a three judge Bench in Soni Gerry v Gerry Douglas, this Court dealt with a case where the daughter of the appellant and respondent, who was a major had expressed a desire to reside in Kuwait, where she was pursuing her education, with her father. This Court observed thus: She has, without any hesitation, clearly stated that she intends to go back to Kuwait to pursue her career. In such a situation, we are of the considered opinion that as a major, she is entitled to exercise her choice and freedom and the Court cannot get into the aspect whether she has been forced by the father or not. There may be ample reasons on her behalf to go back to her father in Kuwait, but we are not concerned with her reasons.
The Court citing Kanu Sanyal v District Magistrate, Darjeeling held that when an individual has attained the age of majority, She/He is entitled to make her/his choice. The courts cannot, as long as the choice remains, assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father.36.
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. Hadiya and Shafin Jahan are adults. Under Muslim law, marriage or Nikah is a contract. Muslim law recognises the right of adults to marry by their own free will. Whether or not Hadiya chose to marry Shafin Jahan was irrelevant to the outcome of the habeas corpus petition. Even if she were not to be married to him, all that she was required to clarify was whether she was in illegal confinement. If she was not, and desired to pursue her own endeavours, that was the end of the matter in a habeas corpus petition. The fact that she decided to get married during the pendency of the proceedings had no bearing on the outcome of the habeas corpus petition.
Another aspect which calls for invalidating the order of the High Court is the situation in which it has invoked the Parens patriae doctrine. Parens Patriae in Latin means “parent of the nation”. In law, it refers 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 needs protection. The parens patriae jurisdiction is sometimes spoken of as ‘supervisory’.
The doctrine of Parens Patriae has its origin in the United Kingdom in the 13th century. It implies that the King as the guardian of the nation is under obligation to look after the interest of those who are unable to look after themselves.
Our Constitution makes it imperative for the State to secure to all its citizens the rights guaranteed by the Constitution and where the citizens are not in a position to assert and secure their rights, the State must come into the picture and protect and fight for the rights of the citizens.
While the scope of the parens patriae jurisdiction is unlimited, the jurisdiction must nonetheless be exercised in accordance with its underlying principle. The discretion given under this jurisdiction is to be exercised for the benefit of the person in need of protection and not for the benefit of others. It must at all times be exercised with great caution. This is particularly so in cases where a court might be tempted to act. This doctrine is subject to constitutional challenge on the ground of the right to privacy. Young men and women know what would be the best for them. It is their life and subject to constitutional, statutory and social interdicts-a citizen of India should be allowed to live her life on her own terms.
The said exercise of power is not without limitation. The courts cannot in every and any case invoke the Parens Patriae doctrine. The said doctrine has to be invoked only in exceptional cases where the parties before it are either mentally incompetent or have not come of age and it is proved to the satisfaction of the court that the said parties have either no parent/legal guardian or have an abusive or negligent parent/legal guardian.
The expression of choice in accordance with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible. Faith of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right. Such actualization indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, it is an indispensable preliminary condition.
Nonacceptance of her choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived. The duty of the Court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law.
In the case at hand, the father in his own stand and perception may feel that there has been enormous transgression of his right to protect the interest of his daughter but his view point or position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition, married the appellant. Therefore, the High Court has completely erred by taking upon itself the burden of annulling the marriage when both stood embedded to their vow of matrimony.
The High Court in the exercise of its jurisdiction under Article 226 ought not to have embarked on the course of annulling the marriage. The Constitution recognises the liberty and autonomy which inheres in each individual. This includes the ability to take decisions on aspects which define one’s personhood and identity. The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme. The law prescribes conditions for a valid marriage. It provides remedies when relationships run aground. Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution. In deciding whether Shafin Jahan is a fit person for Hadiya to marry, the High Court has entered into prohibited terrain. Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences.
Article 16 of the Universal Declaration of Human Rights underscores the fundamental importance of marriage as an incident of human liberty. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to find a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
The right to marry a person of one’s choice is integral to Article 21 of the Indian Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled. These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining our choice of partners.
This Court relying on the judgement of Justice K S Puttaswamy v Union of India held that the ability to make decisions on matters close to one’s life is an inviolable aspect of the human personality. 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 (A Regd. Society) v Union of India, this court held 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 the Constitution, therefore, lies in the guarantee which it affords that each individual will have a protected entitlement in determining a choice of partner to share intimacies within or outside marriage.
The High Court, in the present case, has treaded on an area which must be out of bounds for a constitutional court. The views of the High Court have encroached into a private space reserved for women and men in which neither law nor the judges can intrude. The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. The concern of this Court in intervening in this matter is as much about the miscarriage of justice that has resulted in the High Court as much as about the paternalism which underlies the approach to constitutional interpretation reflected in the judgment in appeal.
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. That decision rests exclusively with the individuals themselves. Neither the state nor society can intrude into that domain. The strength of our Constitution lies in its acceptance of the plurality and diversity of our culture. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture. The Constitution protects it. Courts are duty bound not to swerve from the path of upholding our pluralism and diversity as a nation. Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms. Others are dissuaded to exercise their liberties for fear of the reprisals which may result upon the free exercise of choice. The chilling effect on others has a pernicious tendency to prevent them from asserting their liberty. Public spectacles involving a harsh exercise of State power prevent the exercise of freedom, by others in the same milieu. Nothing can be as destructive of freedom and liberty. Fear silences freedom.
This Bench of three judges pronounced the operative part of its order on 8 March 2018 and allowed the appeal by setting aside the judgment of the High Court annulling the marriage between Shafin Jahan and Hadiya. The Court has underscored that Hadiya is at liberty to pursue her endeavours in accordance with her desires.
The case has marked its presence on the pages of history related to the subject of freedom of choice and will not be forgotten for a long time and will be reiterated in many other judgements of this court as it has displayed the immense strength of the Constitution that shows acceptance of plurality and diversity of different syncretic cultures. Marriage, plurality and individual choices should be zealously guarded from the state intervention is what has been observed in the judgement.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje