This Case Analysis is written by Rhea Bazaz Legal content writer at Lawyers Troop
CITATION– AIR 2018 SC 357
Akhila was a 26 year-old student of homeopathy medicine. Her father, Asokan discovered that she had converted to Islam and had hence, changed her name to Hadiya. After receiving this information, Ashokan fell ill and Hadiya was informed about the same and asked to come home. Hadiya refused to do so and after a lapse of few days, Ashokan filed a police complaint. However, since there was no progress made in the investigation, Ashokan filed a criminal writ petition of Habeas Corpus before the Division Bench of the Kerala High Court.
The petition stated that Hadiya had been brainwashed into becoming a Muslim and she could be taken out of the country. Hadiya then filed an affidavit and made an appearance in court, affirming that she had converted to Islam with her own volition. When the Court directed Hadiya to go back to her parental home, she clearly refused and expressed her desire to stay in Sathyasarani Educational Trust in Mallapuram.
A few days later, the Court interacted with her and found that she was not under illegal detention and permitted her to continue residing at the trust. Nearly 7 months later, Ashokan filed another writ petition stating that Hadiya is likely to be transported out of the country. A few months later, it was informed that Hadiya had gotten married to a man named Shafin Jahan in accordance with Islamic customs and traditions.
The Court then expressed its dissatisfaction at the way this marriage had been carried out. It refused to recognize the marriage and called it a ‘sham’. The Court exercised the jurisdiction of parens patriae and stated that it was concerned about the welfare of the girl who was at a vulnerable age. Although she was way above the age of majority, she was in a vulnerable position and could be exploited easily, especially since she had gotten married with a lot of connivance and conspiracy.
The husband had no authority to act as the girl’s guardian and give her in marriage. Hence, the Court declared the marriage null and void and awarded the custody of Hadiya to her father Ashokan. The Court also directed Hadiya to stay in the hostel and complete her studies. Nobody was supposed to get permission to meet her except for her mother and she wasn’t supposed to keep a mobile phone with her.
Aggrieved by the annulment of the marriage, Shafin Jahan filed a special leave petition in the Supreme Court. The Apex court felt that the High Court had crossed its jurisdiction under habeas corpus by annulling the marriage. The Constitution of India grants every citizen a certain degree of autonomy of making decisions pertaining to their personal lives and this autonomy cannot be taken away by any legislation or court. The High Court overstepped in trying to decide whether Shafin Jahan was a suitable mate for Hadiya. The Supreme Court set aside the judgment of the High Court and prohibited any interference in the married life of the couple.
Whether the high court has the power to set aside the marriage of a major under Article 226 of the Constitution of India.
- Article 226, Constitution of India- Every high court has the power to issue directions, orders or writs to any person or authority within the area of jurisdiction they hold. These writs can be issued for the purpose of upholding fundamental rights and this power shall not be in derogation of the same power given to the Supreme Court under Article 32.
- Article 21- No citizen’s life or liberty can be taken away by the State except by procedure established by law.
In the initial writ petition, Ashokan had expressed fear that his daughter had been radicalized and could be taken out of the country1. The Court discussed the importance and scope of the writ of habeas corpus. It has been held in the past that the purpose of this writ is to keep the proceedings as simple as possible and to ensure immediate determination of the applicant’s right to freedom2.
It is a procedural writ which deals with the machinery of justice and is not part of substantive law. Its main objective is to secure the release of the person whose liberty has been curtailed3. The main purpose of this writ is to ensure that nobody is deprived of his liberty without sanction of law. The person who has been detained should be produced before the court and it should be found out what his choice is.
The Court has the duty to ensure that the person is not detained illegally and the enquiry is to go on till it is clear that the detention does not go against the legal framework4. The High Court felt that the marriage was a sham and took exception to the same. The High Court ignored the fact that Hadiya was a minor and in such a case, parental concern cannot overshadow personal liberty.
Once Hadiya was produced before the court, she had declared that she did not wish to go to her parental home and that she had entered into the marriage with full consent. The Court should have believed the statement of Hadiya and it had no business to consider the societal evils it was talking about.
If there was any criminal aspect involved, it should have been left to the law enforcement agencies to investigate. The Court did not do the right thing by getting into the factor of religious radicalization. The duty of the court under the writ was to ensure that Hadiya was not detained illegally. Once this condition was satisfied, the Court had no reason to curtail her constitutional rights.
In the present case, the doctrine of parens patriae was invoked. Under this doctrine, the court is under a duty to look after those who are unable to look after themselves. The rights of parents and legal guardians are respected by the court but are controlled to a certain extent for the welfare of the person concerned. It imposes a liability on the State to protect people with disability.
It is a doctrine which is meant to ensure that the State bestows the rights endowed in the constitution to those who are unable to assert them5. It has been upheld that this doctrine is not beyond judicial review6. It can also be constitutionally challenged on grounds of privacy7. This doctrine is to be exercised by constitutional courts, keeping in mind the welfare of the child. If the girl who has eloped is a minor, the court may exercise this jurisdiction in her interest till she becomes a major.
The Supreme Court of Canada has held that while the scope of this jurisdiction is unlimited, it is to be exercised for the benefit of the person in need of protection, not for the benefit of others. The court must proceed with caution and act according to the seriousness of the matter8. The constitutional courts can only invoke this doctrine if the person appearing before it is a minor or if it is established that the parents and guardians are abusive or incapable.
Once a habeas corpus petition is filed and the person who was reported to be missing is produced before the court and has stated that she left by her own free will, the High Court has no further jurisdiction to intervene9. India is a free democratic country and once a person becomes a major, they can marry whoever they like. If the parents do not approve of the inter-religious or inter-caste marriage, they could choose to cease relationships with their children but they cannot threaten or harass the couple10. A major is entitled to exercise her own choice and opinions and the court does not have to get into factors like force and the reasons for her decision11.
The Supreme Court held that the High Court has encroached a personal space where even the law and the judges should not intrude. It is up to an individual to determine his choice of life partner and the court has no right to point out the impropriety in the marriage. Constitutional courts must uphold and protect individual freedoms. If there is any issue of criminal justice, the National Investigating Agency (NIA) is allowed to conduct an investigation for the same. However, they are not allowed to interfere in the life of the couple and no investigation carried out should pertain to the validity of the marriage.
This judgment is perceived as important in upholding the plurality and diversity of our country and also paving the way for encouraging autonomy in one’s personal life. This decision came to be more important as the right to privacy is now considered a fundamental right12. Also, a person’s autonomy depends on certain factors like the ability to decide what to eat, what to wear and who to marry. Also, no individual can be forced to share the intimacies and details of their marriage.
Even if one were to consider that Hadiya was brainwashed and indoctrinated by ‘love jihad’, one cannot order a major girl to stay isolated without a phone and she cannot be forced to return home if she has made it clear that she doesn’t want to. It is high time that Indian society realizes that beyond a certain age, one cannot be held back from making decisions and one should be encouraged to practice autonomy in their daily affairs.
- Asokan KM v. Superintendent of Police, (2017) 2 KLJ 974, (India)
- Ranjit Singh v. Pepsu Road Transport Corporation, (2005) 139 PLR 844, (India)
- Kanu Sanyal v. District Magistrate, Darjeeling, 1973 AIR 2684, (India)
- Ummu Sabeena v. State of Kerala, (2011) 10 SCC 781, (India)
- Charan Lal Sahu v. Union of India, (1990) 1 SCC 613, (India)
- Anuj Garg and Others v. Hotel Association of India, 2008 (3) SCC 1, (India)
- City of Cleburne v. Cleburne Living Centre, 473 US 432, (United States)
- E (Mrs.) v. Eve, 2 SCR 388, (Canada)
- Girish v. Radhamony, (2009) 16 SCC 360, (India)
- Bhagwan Dass v. State, (2011) 6 SCC 396, (India)
- Soni Gerry v. Gerry Douglas, (2018) 2 SCC 197, (India)
- Justice KS Puttaswamy v. Union of India, 2017 (10) SCC 1, (India)