Shafin Jahan

v

Asokan K.M. and others

2018 SCC Online SC 201

Introduction

Hadiya (formerly Akhila Ashokan) is a 24 year old homeopathic medical student from Vaikom Kerela. In 2016 she was reported missing by her father Asokan who had filled a police complaint and then filed a writ of Habeas Corpus in Kerela High Court. But Hadiya had informed that there was no illegal constraint and she had willing didn’t want to stay with her father. She being an adult has the right to choose her place of stay. Hadiya was staying with Sainaba who was the presidnr of Popular Front of India women’s wing. Hadiya had converted her religion and married a Muslim man Shafin Jahan. In May 2017marriage of Hadiya and Shajin Jahan was annulled by the High Court of Kerela stating that Hadiya was a victim of indoctrination and psychological kidnapping, and that their claims of their marriage being arranged through a matrimony website were “bogus”.[i] Custody of Hadiya was given to her father. A SLP was filled by Shafin Jahan against the order of  Kerela High Court. In March 2018, the Supreme Court restored marriage of Hadiya and Shafin Jahan .[ii]

Background

The slp was filled by Shafin Jahan in the Supreme Court of India against the order of kerela High Court which had decalred marriage between Shafin Jahan and Hadiya null and void.  Asokan father of Hadiya had filled a writ of Habeas Cropous before division bench in Kerela high Court under article 226 of the constitution of India. Writ petition was filed by Asokan because it was alleged that his daughter Hadiya has been brainwashed and she will be taken out of the country. The Division bench exercised Parens Patriae jurisdiction and held the marriage of Hadiya and Shafin Jahan null and void irrespective of the fact that both the parties to the marriage had attained legal age to get married and gave their free consent for the marriage.

This case created a grey area for exercise of Parens Patriae jurisdiction.  Before this case the Courts used to exercise Parens Patriae jurisdiction in situation where there is incapacity to take fair and reasonable decision i.e. either in case of minor or a person or in case of person with unsound mind. These two categories are included because they are more vulnerable and hence it is the duty of the Court to protect and safeguard their rights. But Division bench of Kerela High Court exercised Parens Patriae jurisdiction for a twenty four year old women stating that young women are vulnerable at this age and as per Indian traditions the parents have the custody of an unmarried daughter. The objective of this SLP was to analyze Parens Patriae jurisdiction and scope of Article 226. 

Facts

Akhila alias Hadiya aged about 26 years old was the only child of Sh. Asokan K.M. She pursued BHMS from Shivraj Homeopathic Medical College, Salem Tamil Nadu and while pursuing the said course she initially resided in the hostel and then shifted to a rented house with five other friends. Jaseena and Faseena were daughters of Aboobacker and were two of five friends who stayed with Hadiya. Hadiya used to visit the house of Aboobacker. Due to demise of paternal grandfather of Hadiya, she visited her family. Asokan and other family members witnessed changes in behavior of Hadiya as she was reluctant to participate in the rituals performed in connection with the funeral of her grandfather.

Then Hadiya went for her internship and was in constant touch with her family till 5^th January2016. It was on 6^th January 2016 Asokan received a phone call stating that Hadiya had left her house wearing a ‘Pardah’ and that she was being inspired to change her faith. Hadiya and Jaseena left for Salem to visit Asokan but Hadiya didn’t reach her father’s house. When Asokan went to search for Hadiya , he was informed that Hadiya was living with Aboobacker . When Abookbacker was contacted by Asokan to meet Hadiya, Abookabacker promised that he would bring Hadiya to Ms. Archana’s house but this meeting never took place. Later Asokan was informed that Hadiya had escape.

Thereafter Asokan filed a police complaint but no action was taken by police and hence subsequently Asokan filed in writ petition of Habeas Corpus before the Division Bench of the High Court of Kerala. During the hearing of this writ petition an application for impleadment was filed by Hadiya and the said application was allowed by the Division Bench. Through an affidavit by Hadiya it was mentioned that she had communicated to her father as well as to DG Police by registered letter regarding the actual state of affairs and Hadiya along with Sainaba filed writ petition seeking protection from police harassment.

The Division bench tried to persuade Hadiya to go with her father but she was not willing to go with her father. Division Bench then permitted Hadiya to stay with Sainaba till she joins Satyasarani as this was requested by Hadiya herself. The division bench vide judgment dated 25.01.2019 stated that the bench was convinced that detenue was not under any illegal confinement and hence there exists no circumstances for interference for issuance of any writ of Habeas Corpus. Hence the original petition was disposed.

When the matter stood thus Asokan filed a second Writ Petition (Criminal) alleging that Hadiya was likely to be transported out of the country. An interim order was passed for keeping surveillance and to ensure that Hadiya was not taken out of the country. Hadiya denied to go with her parents and also stated that she was not being allowed to interact with anyone. She also mentioned that she had never been issues passport and she wanted to reside at a place of her own choice. Considering this High Court passed an order which stated that she is not in illegal custody of anyone and that this Court cannot any longer direct Hadiya to reside at hostel. On the basis of this order Hadiya was permitted to stay with Sainaba.

 Asokan was anxious about safety of her daughter and that Hadiya had not completed her house surgeoncy which she wishes to complete from Salem which was away from the house of Sainaba. Hadiya was willing to reside at the hostel provided by the institute. The Court was to pass further order regarding admission of Hadiya in girls hostel on 21.12.2016 but on the said date Hadiya appeared before the High Court and made a statement that she had entered into a marriage with Shafin Jahan. The Division Bench exercising Parens Patriae jurisdiction expressed the concern about the safety of the detenue . The question that arose was that whether the marriage has been allegedly performed to take her out of the country as Shafin Jahan used to work in the Gulf.

The Court also questioned how Shafin Jahan came in contact with Hadiya and under what circumstances had Hadiya agreed to marry Shafin Jahan.  Hence exercising Parens Patria jurisdiction the Court held that as per  Indian traditions  the custody of an unmarried daughter is with the parents and it was considered the duty of the Court to ensure that a person who is under such vulnerable state in not exposed to  further danger. 

The Court also placed on record their dissatisfaction at the manner in which the marriage if at all has been performed. The Court held that Asokan is directed to escort Hadiya to S.N.V.Sadanam Hostel and Hadiya should not be provided with the facility of possessing or using a mobile phone. The Court also held the procedure in which marriage was conducted as arbitrary and hence the marriage was declared null and void.  Against this order SLP was filed by Shafin Jahan.

Issues

Issues

Issue raised in this case was if High Court has the power to annul the marriage of an adult under Article 226?

Related Cases

In Secretary of State for Home Affairs v. O’Brien[iii], it was observed that:­

“… It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. It has through the ages been jealously maintained by the Courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege.”

In Charan Lal Sahu v. Union of India[iv], the Constitution Bench, while talking about the concept of parens patriae jurisdiction stated:­

“35. … In the “Words and Phrases” Permanent Edition, Vol. 33 at page 99, it is stated that parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons non sui juris, such as minor, insane, and incompetent persons, but the words parens patriae meaning thereby ‘the father of the country’, were applied originally to the King and are used to designate the State referring to its sovereign power of guardinaship over persons under disability. (emphasis supplied) Parens patriae jurisdiction, it has been explained, is the right of the sovereign and imposes a duty on sovereign, in public interest, to protect persons under disability who have no rightful protector. The connotation of the term parens patriae differs from country to country, for instance, in England it is the King, in America it is the people, etc. The Government is within its duty to protect and to control persons under disability. Conceptually, the parens patriae theory is the obligation of the State to protect and takes into custody the rights and the privileges of its citizens for dischargings its obligations. 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 picture and protect and fight for the rights of the citizens. …”

In Anuj Garg and Others v. Hotel Association of India and others[v], a two­Judge Bench, while considering the constitutional validity of Section 30 of the Punjab Excise  Act,1914  prohibiting  employment  of  “any  man  under  the  age  of  25 years or any woman in any part of such premises in which liquor or intoxicating drug is consumed by the public, opined thus in the context of the parens patriae power of the State:­

“29. One important justification to Section 30 of the Act is parens patriae power of State. It is a considered fact that use of parens patriae power is not entirely beyond the pale of judicial scrutiny.

30. Parens patriae power has only been able to gain definitive legalist orientation as it shifted its underpinning from being merely moralist to a more objective grounding i.e. utility. The subject­matter of the parens patriae power can be adjudged on two counts:

• in terms of its necessity, and

• Assessment of any trade­off or adverse impact, if any.”

In State of Kerala v.N.M.  Thomas[vi] wherein it has been stated that “the Court also is ‘State’ within the meaning of Article 12 (of the Constitution).” opined: ­

“130. In our opinion, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.”

In of Re: SA (Vulnerable Adult with capacity:  Marriage),  Justice Munby observes:­

“The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. The cause may be, but is not for this purpose limited to, mental disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors”[vii].

State of Orissa v Ram Chandra Dev and Mohan Prasad Singh Deo[viii] observed thus:

“Under Article 226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said Article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Article 226 is not confined to case of illegal invasion of this fundamental right alone. But though the jurisdiction of the High Court under Article 226 is wide in that sense, the concluding words of that Article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Article 226”.

Keshav Singh[ix], a Bench of seven learned judges held thus:

“136…in the case of a superior Court of Record, it is for the Court to consider whether any matter falls within its jurisdiction or not. Unlike a Court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction. “Prima facie”, says Halsbury, “no matter is deemed to be beyond the jurisdiction of a superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior Court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court[x]”.

In Gian Devi v Superintendent, Nari Niketan, Delhi[xi], a three-judge Bench observed that where a person 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:

“…Whatever may be the date of birth of the petitioner, the fact remains that she is at present more than 18 years of age. 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.”

In Lata Singh v State of UP[xii], Bench of two judges took judicial notice regarding prevailing issue of harassment, threat and violence faced by young women and men who marry outside their caste or religion. 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:

“17…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 that 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. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple is not harassed by anyone nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.”

 Considering these principles in Bhagwan Dass v State (NCT OF DELHI)[xiii], this Court adverted to the social evil of honour killings as being but a reflection of a feudal mindset which is a slur on the nation. In a more recent decision of a three judge Bench in case of  Soni Gerry v Gerry Douglas[xiv], 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:

 “9…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. What she has stated before the Court, that alone matters and that is the heart of the reasoning for this Court, which keeps all controversies at bay. 10. It needs no special emphasis to state that attaining the age of majority in an individual’s life has its own significance. 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. We say so without any reservation.”

In Justice K S Puttaswamy v Union of India[xv], this Court in a decision of nine judges 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.”

A Constitution Bench of this Court, in Common Cause (A Regd. Society) v Union of India[xvi], held:

“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.”

Judgment

The allegations that Hadiya was deceived into marrying her husband Mr. Shafin Jahan and forcibly converted to Islam were assessed by the Court. The Court held that the allegation, which was made by her parents, was clearly false.

 There were two separate judgments:

• Chief Justice Dipak Misra’s majoritiy opinion on behalf of himself and AM Khanwilkar
• Justice DY Chandrachud’s concurring opinion

Majority opinion

The Court held that the pivotal purpose of the writ of habeas corpus is to see if 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. The role of the Court is limited to see that the detenue is produced before it, find out about his/her independent choice and to see that the person is released from illegal restraint if any. In this case the high Court is guided by a social phenomenon. The High Court considered marriage of Hadiya and Shafin to be exception but this was not the case. The high Court should have regarded her choice and directed her to go where she wished to. The criminal aspect to the case is not in question here and the authorities that are dealing criminal matters would deal with so.  

The exercise of parens patriae principle is guided by some limitations and can only be used the necessary conditions are met. The said power must be used in exceptional cases only.  When the Court interacted with Hadiya the Court held that there was nothing to suggest that she suffers from any kind of mental incapacity or vulnerability.  She was absolutely categorical in her submissions and unequivocal in the expression of her choice. The social value and morals have space but they are not above the constitutionally guaranteed freedom. Hadiya has her freedom for faith and also has the right to marry anyone of her choice and live where ever she wishes to. The Court restored the marriage of Hadiya and Shafin Jahan.

Concurring opinion

The Court held that High Court doesn’t have the power to decide what is considered to a ‘just’ way of life or ‘correct’ way. Hadiya has absolute autonomy over her person. When Hadiya appeared before the Court and said that she was not in illegal confinement there was no warrant for the high Court to procede further under Art 226 of constitution as the petition for habeas corpus had ended. High Court entered into a domain which was alien to its jurisdiction. Declaring marriage between Hadiya and Shafin null and void is plainly in excess of judicial power. High Court transgressed the limits on its jurisdiction under writ of habeas corpus. The views of the high Court have encroached into a private space reserved for women and men.

Highlights and conclusion

From the judgment of this case we can clearly consider that Kerela High Court have exceeded its jurisdiction of writ of habeas corpus which is provided to the Court under Article 226 of the constitution of India. High Court was influenced by the social factors and hence didn’t gave a fair judgment. An adult has the right to marry person he/she wants to marry and can decide where to live or not. A person has the freedom to choose any religion of his/her faith. Societal morality cannot be considered above constitutional rights provided by the constitution. The constitutional Courts have been formed to protect fundamental rights of the people. Right to privacy is also a recognized fundamental right under Art 21 of the constitution and the Courts must not intrude in privacy of a man or women.

[i]  “Hadiya case: Critical findings demolish petitioner’s case, says NIA in court”. The Indian Express. 28 November 2017. Retrieved 30 November 201

[ii] “Kerala conversion case: Hadiya demands freedom; SC allows her to resume studies, sets next hearing in January”. The Indian Express. Indian Express. 27 November 2017. Retrieved 28 November 2017.

[iii] [1923] AC 603 : [1923] ALL E.R. Rep. 442 (HL)

[iv] (1990) 1 SCC 613

[v] (2008) 3 SCC 1

[vi] (1976) 2 SCC 310

[vii] paragraph 79

[viii] (1965) 1 SCR 413

[ix] AIR (1964) SC 685

[x] Halsbury’s Law of England, Vol. 9, p. 349

[xi] (1976) 3 SCC 234

[xii] (2006) 5 SCC 475

[xiii] (2011) 6 SCC 396

[xiv] (2018) 2 SCC 197

[xv] 2017 (10) SCC 1

[xvi] Writ Petition(Civil) No. 215 of 2005