Supreme Court of India
Shafin Jahan vs Asokan K.M. on 8 March, 2018
Equivalent citations: AIRONLINE 2018 SC 1136
Author: Chief Justice
Bench: Chief Justice, A.M. Khanwilkar, D.Y. Chandrachud
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 366 OF 2018
(Arising out of S.L.P. (Crl.) No. 5777 of 2017)
Shafin Jahan …Appellant(s)
Versus
Asokan K.M. & Ors. …Respondent(s)
J U D G M E N T
Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.]
Rainbow is described by some as the autograph of the
Almighty and lightning, albeit metaphorically, to be the
expression of cruelty of otherwise equanimous “Nature”.
Elaborating the comparison in conceptual essentiality, it can be
said that 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. That is fundamentally an expression of
Signature Not Verified
Digitally signed by
CHETAN KUMAR
Date: 2018.04.09
acrimony which gives indecent burial to the individuality of a
16:03:39 IST
Reason:
person and refuses to recognize the other’s identity. That is
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reflection of cruelty which the law does not countenance. The
exposé of facts in the present case depicts that story giving it a
colour of different narrative. It is different since the State that is
expected to facilitate the enjoyment of legal rights of a citizen has
also 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 Everestine
effort 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 selfobsession with
the feeling that a female is a chattel. It is also necessary to add
here that the High Court on some kind of assumption, as the
impugned judgment and order would reflect, has not been
appositely guided by the basic rule of the highly valued writ of
habeas corpus and has annulled the marriage. And that is why
the order becomes a sanctuary of errors.
2. On 08.03.2018, this Court had allowed the appeal passing
the following order:
“Leave granted.
Heard Mr. Kapil Sibal and Ms. Indira Jaising,
learned senior counsel along with Mr. Haris Beeran,
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learned counsel for the appellant, Mr. Maninder
Singh, learned Additional Solicitor General for the
National Investigation Agency (NIA) and Mr. Shyam
Divan, learned senior counsel along with Ms.
Madhavi Divan, learned counsel for respondent
No.1.
The reasoned judgment will follow. The
operative part of the order reads as follows:
Considering the arguments advanced on both
sides, in the facts of the present case, we hold that
the High Court should not have annulled the
marriage between appellant No.1, Shafin Jahan and
respondent No.9, Hadiya alias Akhila Asokan, in a
Habeas Corpus petition under Article 226 of the
Constitution of India. We say so because in the
present appeal, by special leave, we had directed the
personal presence of Hadiya alias Akhila Asokan;
she appeared before this Court on 27th November,
2017, and admitted her marriage with appellant
No.1.
In view of the aforesaid, the appeal stands
allowed. The judgment and order passed by the
High Court is set aside. Respondent No.9, Hadiya
alias Akhila Asokan is at liberty to pursue her
future endeavours according to law. We clarify that
the investigations by the NIA in respect of any
matter of criminality may continue in accordance
with law.”
3. Presently, we proceed to state the reasons.
4. The facts which are necessary to be stated are that Ms.
Akhila alias Hadiya, respondent No.9 herein, aged about 26 years
at present, the only child of Sh. Asokan K.M., respondent No.1
herein, and Smt. Ponnamma, had completed a degree in
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Homeopathic Medicine, BHMS (Bachelor of Homeopathic
Medicine and Surgery) from Shivaraj Homeopathic Medical
College, Salem in Tamil Nadu. While pursuing the said course,
she was initially residing in the college hostel and later she
started staying in a rented house near her college together with
five other students among whom were Jaseena and Faseena,
daughters of one Aboobacker. During the college holidays, Hadiya
used to visit the house of Aboobacker and there was also an
occasion when both Jaseena and Faseena came to reside with
Hadiya at the house of Asokan, respondent No.1 herein. On 6 th
December, 2015, Hadiya’s paternal grandfather breathed his last.
Hadiya on that day came back to her house and it is alleged that
at that time, the family members and relatives of Asokan noticed
some changes in her behaviour as she was showing reluctance to
participate in the rituals performed in connection with the
funeral of her grandfather. Thereafter, she went to Salem for her
internship along with Jaseena and Faseena. Till 5 th January,
2016, she was in constant touch with her family. Thereafter, on
the next day, i.e., 6th January, 2016, Asokan received a telephone
call from one of the friends of Hadiya informing that Hadiya had
gone to the college on that day wearing a ‘Pardah’. The
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respondent No.1 was further informed that Hadiya was inspired
by someone to change her faith.
5. Upon receiving the information, Asokan fell ill. Smt.
Ponnamma, wife of Asokan, called Hadiya and informed her
about the illness of her father. Jaseena and Hadiya left for Salem
about 8 p.m. on 6th January, 2016 but Hadiya did not reach her
father’s house. Later Asokan went in search of Hadiya and came
to know from one Ms. Archana that Hadiya was living at the
house of Aboobacker. Thereupon, Asokan contacted Aboobacker
for meeting his daughter Hadiya. Aboobacker promised Asokan
that he would bring Hadiya to the house of Ms. Archana, a friend
of Hadiya, but this never happened and later Asokan was
informed that Hadiya had escaped from the house of Aboobacker
and had run away somewhere. Disgusted and disgruntled, as he
was, Asokan filed a complaint before S.P. Malapuram District,
but as there was no progress made by the police in the
investigation of the matter, Asokan filed a Writ Petition of Habeas
Corpus before the Division Bench of the High Court of Kerala
being W.P. (Criminal) No. 25 of 2016.
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6. On 14.01.2016, when the case came up for admission, the
Division Bench directed the Government pleader to get
instructions regarding the action, if any, taken on the aforesaid
complaint of Asokan. Thereafter, on 19.01.2016, when the case
was taken up for further consideration, Hadiya appeared through
a lawyer and filed an application for impleadment being I.A. No.
792 of 2016. The said application for impleadment was allowed
and Hadiya was impleaded as a respondent. An affidavit dated
26.11.2016 was filed on her behalf stating, inter alia, the facts
and circumstances under which she had left her house. The
aforesaid affidavit mentioned that she had communicated to her
father as well as Director General of Police by registered letter
regarding the actual state of affairs. Further, she along with one
Sainaba filed Writ Petition being W.P. (C) No. 1965 of 2016
seeking protection from police harassment.
7. The Division Bench in W.P. (Criminal) No. 25 of 2016
persuaded Hadiya to go along with her father, Asokan, to her
parental house but the said persuasions were all in vain as
Hadiya was not willing to go with her father. The Division Bench,
thereafter, interacted with Sainaba who expressed her
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unequivocal willingness to the Division Bench to accommodate
Hadiya in “Satyasarani” institution and that Sainaba would
render all necessary help to Hadiya to pursue her internship in
BHMS degree course. As Hadiya had taken a stand that she
wanted to join Satyasarani and she was not, in any case, willing
to go back to her parental home along with Asokan, the Division
Bench permitted Hadiya to stay with Sainaba at her house till
she joined Satyasarani. The Division Bench thereafter adjourned
the case for further hearing directing to produce proof regarding
admission of Hadiya in Satyasarani.
8. The case was taken up for consideration by the Division
Bench where the counsel appearing on behalf of Hadiya produced
documents to show that Hadiya had got admission on
20.01.2016 in an institution, namely, ‘Markazul Hidaya
Sathyasarani Educational & Charitable Trust’ at Karuvambram,
Manjeri in Malappuram District. The counsel for Hadiya also
submitted before the writ court that Hadiya was staying in the
hostel of the said institution.
9. The Division Bench, vide judgment dated 25.01.2016,
directed as follows:
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“8. Under the above mentioned circumstances, we
are convinced that the alleged detenue is not under
any illegal confinement. She is at present staying in
the above said institution on her own wish and will.
She is not under illegal confinement. Therefore,
there exists no circumstances warranting
interference for issuance of any writ of Habeas
Corpus. Hence the original petition is hereby
disposed of by recording the fact that the alleged
detenue is staying in the above said institution on
her own free will. It will be left open to the petitioner
and her family members to make visit to her at the
above institution, subject to regulations if any
regarding visiting time."
10. In view of the aforesaid order, the writ petition filed by
Hadiya was withdrawn.
11. When the matter stood thus, the 1st respondent filed a
second Writ Petition (Criminal) No. 297 of 2016 alleging that his
daughter was likely to be transported out of the country and the
High Court, vide interim order, directed the respondent to keep
her under surveillance and to ensure that she was not taken out
of the country without further orders of the Court. The
averments made by the father in the writ petition need not be
stated in detail. Suffice it to say that Hadiya alias Akhila
categorically declined to go with her parents and stated in the
affidavit filed by her that she was not being permitted to interact
with anyone. Hadiya further stated that she wanted to reside at
9
a place of her choice and that she had not been issued a passport
and, therefore, there was no likelihood of her being taken to
Syria. The High Court, considering the affidavit, passed the
following order:
“After hearing learned counsel on both sides, we are
of the opinion that in the light of the finding entered
by this court in the earlier round of litigation that
this Court cannot compel the petitioner's daughter
to go and reside with her parents and that she is
not in the illegal custody of anyone, this court
cannot any longer direct that the petitioner's
daughter should continue to reside at
Santhinikethan Hostel, Pachalam. When we asked
the petitioner's daughter as to whether she is willing
to appear on another day, she submitted that she
will appear on the next hearing date. Learned
counsel for the detenue also submitted that the
detenue will be present in person on the next
hearing date. We accordingly permit the detenue to
reside at a place of her choice. We also record the
statement of Ms. Akhila that she proposes to reside
with the seventh respondent, Smt. A.S.Sainaba,
whose address is mentioned in the instant writ
petition. Sri. P.K.Ibrahim, learned counsel
appearing for the seventh respondent submitted
that the seventh respondent will cause production
of the petitioner's daughter on the next hearing
date, if she proposes to reside with her. If the
petitioner's daughter proposes to shift her residence
and to reside elsewhere, we shall inform that fact to
the Deputy Superintendent of Police,
Perinthalmanna in writing and furnish her full
residential address and the telephone number if any
over which she can be contacted. Call on
24.10.2016. The Deputy Superintendent of Police,
Perinthalmanna shall cause production of the
petitioner's daughter on that day. It will be open to
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the parents of Ms. Akhila to meet and interact with
her.”
12. On the basis of the aforesaid order passed by the High
Court, Hadiya was permitted to reside with the 7 th respondent.
On 14.11.2016, the counsel for the writ petitioner before the High
Court expressed serious apprehension regarding the continued
residence of his daughter in the house of the 7 th respondent
therein. On 19.12.2016, the High Court noted that she had not
completed her course and acquired competence to practise
homeopathy and, accordingly, expressed the opinion that she
should complete her House Surgeoncy without delay and obtain
eligibility to practice. A statement was made on her behalf that
she has to complete her House Surgeoncy at the Shivaraj
Homeopathic Medical College, Salem which has a hostel for
women where she was willing to reside for the purpose of
completing her House Surgeoncy. On the basis of the aforesaid,
the High Court passed the following order:
“We have heard the learned Senior counsel Sri.
S.Sreekumar, who appears for the detenue. We have
perused the affidavit dated 26.11.2016 filed by the
detenue producing documents, Exts. R8(d) and
R8(e). We are not prepared to rely on Ext.R8(d)
which purports to make it clear as though a
registered Homeopathic Medical Practitioner has
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permitted the detenue to work as a trainee in
Homeopathic Medicine on a remuneration of
Rs.2000/ per month for her day today expenses.
We fail to understand how the detenue, who has not
obtained a degree in Homeopathy can be permitted
to train under him. The detenue has admittedly not
completed her House Surgeoncy or obtained
eligibility to practice. Therefore, it is only
appropriate that she completes her House
Surgeoncy without further delay and obtains
eligibility to practice Homeopathic Medicine. Her
Senior counsel Sri. S.Sreekumar informs us that,
the detenue is desirous of completing her House
Surgeoncy. However, we place on record our
dissatisfaction at the continued residence of the
detenue with the 7th respondent, who is a stranger.
The counsel for the petitioner also expresses anxiety
and concern at her continued residence with the
7th respondent. He is anxious about the safety and
well being of the detenue. His anxiety and concern
as the parent of an only daughter is
understandable. Therefore, it is necessary that the
detenue shifts her residence to a more acceptable
place, without further delay. According to the
learned Senior counsel Sri.S.Sreekumar, she has to
complete her House Surgeoncy at the Shivaraj
Homeopathic Medical College, Salem. The college
has a hostel for girl students where she is willing to
reside and complete her House Surgeoncy. The
petitioner offers to bear the expenses for her
education and stay at the Medical College Hostel.
He offers to escort her to the Medical College and to
admit her into the Hostel there. The detenue is also,
according to the learned Senior counsel, willing to
accompany her.
2. In view of the above, there shall be a direction
to the detenue to appear before this Court at 10.15
a.m. on 21.12.2016. The petitioner shall also be
present in person in Court on the said date. The
petitioner who is stated to be in possession of the
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certificates of the detenue shall bring such
certificates also to Court. We shall pass further
orders in the matter, regarding the manner in which
the detenue is to be taken to the Medical College
and admitted to the ladies hostel, on 21.12.2016.
Post on 21.12.2016.”
13. On 21.12.2016, Hadiya appeared before the High Court and
a statement was made that she had entered into marriage with
Shafin Jahan, the appellant herein. The High Court, at that
juncture, as the order would reflect, noted that her marriage was
totally an unexpected event and proceeded to ascertain the
veracity of the statement made. It has recorded its displeasure
as to the manner in which the entire exercise was accomplished.
It passed a detailed order on 21.12.2016. The relevant part of
the order reads thus:
“This court exercising its Parens Patriae jurisdiction
is anxious and concerned about the safety of the
detenue and her well being, viewed especially in the
light of the allegations made in the Writ Petition and
the continued obstinance of the detenue to return to
her parents. The person who is stated to have got
married to the detenue has appeared before us
today, for the first time. He claims to be a graduate
and a person who is employed in the Gulf. It is
stated that, he is desirous of taking the detenue out
of the country. It was precisely the said
apprehension that was expressed by her father in
the proceedings before this Court on the earlier
occasion. This Court has on the said occasion
recorded the fact that since she was not possessed
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of a Passport, there was no likelihood of her being
taken to Syria. The question that crops up now is
whether the marriage that has been allegedly
performed is not a device to transport her out of this
country. We are not aware of the identity of the
person who is alleged to have got married to the
detenue. We are not aware of the antecedents of the
said person or his family background. The address
mentioned in the marriage certificate produced
shows that he is from Kollam. In what manner he
has come into contact with detenue and under what
circumstances, the detenue has agreed to get
married to a stranger like him are matters that
require to be probed thoroughly. The marriage
certificate shows that the marriage was performed
by the Khazi at the house of the 7th respondent,
Srambikal House, Puthur. Why the marriage was
conducted at her house is not clear. Unless the
above questions are answered, it cannot be
accepted that the detenue is in safe hands. This
Court exercising Parens Patriae jurisdiction has a
duty to ensure that young girls like the detenue are
not exploited or transported out of the country.
Though the learned Senior Counsel has vociferously
contended that the detenue is a person who has
attained majority, it is necessary to bear in mind
the fact that the detenue who is a female in her
twenties is at a vulnerable age. As per Indian
tradition, the custody of an unmarried daughter is
with the parents, until she is properly married. We
consider it the duty of this Court to ensure that a
person under such a vulnerable state is not exposed
to further danger, especially in the circumstances
noticed above where even her marriage is stated to
have been performed with another person, in
accordance with Islamic religious rites. That too,
with the connivance of the 7th respondent with
whom she was permitted to reside, by this Court. 8.
We place on record our absolute dissatisfaction at
the manner in which the marriage if at all one has
been performed, has been conducted. The 7 th
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respondent having been a party to these
proceedings had a duty to at least inform this Court
of the same, in advance. This Court had relying on
her credentials and assurance, permitted the
detenue to accompany her and to live with her. We
would have expected a reasonable litigant, which
includes the detenue also who as we have noticed
earlier, is represented through an eminent Senior
Counsel of this Court, to have informed this Court
and obtained permission from this Court before
such a drastic course was undertaken. Considering
the manner in which the marriage has been
conducted, the secrecy surrounding the said
transaction and also the hurried manner in which
the whole exercise was completed, the entire
episode is shrouded in suspicion. Unless the
suspicion is cleared the detenue cannot be
permitted to go with the person who is seen to be
accompanying her now. In view of the above, the
following directions are issued.
1) The first respondent is directed to escort the
detenue and to have her accommodated at the
S.N.V.Sadanam Hostel, Chittoor Road, Ernakulam,
until further orders. The first respondent shall
ensure that she is not provided the facility of
possessing or using a mobile phone. The petitioner
and the mother shall be at liberty to meet her
according to the rules and regulations of the hostel.
No other person is permitted to meet her.
2) The first respondent shall cause an investigation
to be conducted into the education, family
background, antecedents and other relevant details
of Sri. Shafin Jahan who is stated to be the
bridegroom of the alleged marriage that is stated to
have been conducted on 19.12.2016 as evidenced
by the certificate dated 20.12.2016 produced before
us. The first respondent shall also enquire into the
circumstances surrounding the conduct of such
marriage, the persons who were involved in the
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conduct of the same the organization that has
issued the marriage certificate, as well as their
antecedents. A report of such investigation shall be
placed before us before the next posting date of this
case. The 4th respondent shall oversee the
investigation and see that all relevant details are
unearthed and placed before us including any links
with extremist organizations, of which allegations
are made in the Writ Petition.
3) The Secretary, Othukkungal Grama Panchayat is
directed not to issue the marriage certificate sought
for by the applicants Shafine Jahan and Hadiya as
per receipt dated 20.12.2016, without further orders
from this Court. The petitioner shall bear the
expenses for the accommodation of the detenue at
the hostel.
4) Post on 6.1.2017.”
14. Thereafter, the matter was taken up on various dates by the
High Court and eventually, by the impugned judgment and order,
it opined that a girl aged 24 years is weak and vulnerable and
capable of being exploited in many ways and thereafter, 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
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custody of Akhila alias Hadiya should be given to her parents.
The High Court further directed to the following effect:
“She shall be cared for, permitted to complete her
House Surgeoncy Course and made professionally
qualified so that she would be in a position to stand
independently on her own two legs. Her marriage
being the most important decision in her life, can
also be taken only with the active involvement of her
parents. The marriage which is alleged to have been
performed is a sham and is of no consequence in
the eye of law. The 7th respondent and 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. It is
declared to be so.”
15. The High Court also directed that a police officer of the rank
of SubInspector should escort Akhila alias Hadiya from the
hostel to her father’s house and the Superintendent of Police,
Respondent No.2 therein, should maintain surveillance over them
to ensure their continued safety. That apart, the High Court
issued the following directions:
“iii) The 4th respondent shall take over the
investigation of Crime No. 21 of 2016 of
Perinthalmanna Police Station and shall have a
comprehensive investigation conducted co
ordinating the investigation in Crime No.510 of 2016
of Cherpulassery Police Station which has been
registered into the forcible conversion of Ms.Athira
which is the subject matter of W.P.(Crl.) No. 235 of
2016 of this Court. The 4th respondent shall also
investigate the activities of the organizations that
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are involved in this case of which reference has been
made by us above. Such investigation shall be
completed as expeditiously as possible and the
persons who are found to be guilty shall be brought
to the book.
iv) The 4th respondent shall conduct a fullfledged
enquiry into the lapses on the part of the
Investigating Officer in this case and shall, if
necessary, pursue departmental proceedings against
the Officer concerned.”
16. Against the aforesaid order, the present appeal, by special
leave, was filed by Shafin Jahan seeking permission to file the
special leave which is granted by this Court.
17. This Court, vide order dated 4.8.2017, asked Mr. Maninder
Singh, learned Additional Solicitor General, to accept notice on
behalf of the Respondent No.6, the National Investigating Agency
(NIA). Thereafter, various orders were passed by this Court with
regard to investigation which are not necessary to narrate. It is
worthy to mention that on 30.10.2017, this Court directed the 1 st
respondent to produce his daughter before this Court on
27.11.2017. On the date fixed, Hadiya was produced before this
Court and a prayer was made to interact with Hadiya in camera
and not in open Court but repelling the said submission, the
following order was passed:
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“After due deliberation, we thought it
appropriate to interact with Akhila @ Hadiya and we
have accordingly interacted with her in Court. We
were told that though she can communicate in
English, she may not be able to effectively articulate
in that language. Hence, we requested Mr. V. Giri,
learned senior counsel, who also represents the
State of Kerala to assist in translating the questions
posed to her in Court and the answers given by her.
The range of questions that we posed basically
pertained to her qualifications, interest in studies,
perception of life and what she intends to do in
future. In response to our queries, she responded by
stating that she has passed Class X from Higher
Secondary School in K.V. Puram, Vaikom in
Kottayam District and thereafter she was
prosecuting her BHMS course in Shivaraj
Homeopathy Medical College in Salem in the State
of Tamil Nadu. She has also stated that she intends
to continue her internship/ housemanship which
she had left because of certain reasons and her
ambition is to become a fullfledged homeopathic
doctor. She has expressed her desire to stay in the
hostel and complete the course in the said college, if
a seat is made available.
In the above view, we direct, as desired by her,
that she be taken to Salem so as to enable her to
pursue her internship/housemanship. We also
direct the college to admit her and to allow the
facility of a room or a shared room in the hostel as
per practice to enable her to continue her
internship/housemanship afresh. Be it stated, she
herself has stated that the duration of the
internship/housemanship is likely to be for 11
months. If any formality is to be complied with, the
college shall communicate with the university and
the university shall accede to the same. Our
directions are to be followed in letter and spirit by
all concerned. Needless to say, when she stays in
the hostel, she will be treated like any other student
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and will be guided by the hostel rules. If necessary,
the expenses for pursuing the course and for the
hostel shall be borne by the State of Kerala. The
Dean of the College shall approach this Court if
there is any problem with regard to any aspect. 'Any
problem' does not mean, admission in the hostel or
continuance in the course.
We direct the State of Kerala to make all
necessary arrangements so that she can travel to
Salem at the earliest. She has made a request that
she should be accompanied by policewomen in
plainclothes. The State shall attend to the prayer
appropriately. If any security problem arises, the
State of Tamil Nadu shall make local arrangements
for the same. We have been told that she is
presently staying in Kerala Bhawan at New Delhi.
Mr. V. Giri, learned senior counsel assures this
Court that she shall be permitted to stay in Kerala
Bhawan till she moves to Salem.
We make it clear that the NIA investigation
shall continue in accordance with law.”
18. The aforesaid adumbration calls for restatement of the law
pertaining to writ of habeas corpus which has always been
considered as ‘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.
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19. In P. Ramanatha Aiyar’s Law Lexicon (1997 Edn.), while
defining “habeas corpus”, apart from other aspects, the following
has been stated:
“The ancient prerogative writ of habeas corpus takes
its name from the two mandatory words habeas
corpus, which it contained at the time when it, in
common with all forms of legal process, was framed
in Latin. The general purpose of these writs, as their
name indicates, was to obtain the production of an
individual.”
20. In Cox v. Hakes1, Lord Halsbury observed as under:
"For a period extending as far back as our legal
history, the writ of habeas corpus has been regarded
as one of the most important safeguards of the
liberty of the subject. If upon the return to that writ
it was adjudged that no legal ground was made to
appear justifying detention, the consequence was
immediate release from custody. If release was
refused, a person detained might make a fresh
application to every judge or every court in turn,
and each court or judge was bound to consider the
question independently and not to be influenced by
the previous decisions refusing discharge. If
discharge followed, the legality of that discharge
could never be brought in question. No writ of error
or demurrer was allowed."
21. In Secretary of State for Home Affairs v. O’Brien 2, it has
been 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
1 (1890) 15 AC 506
2 [1923] AC 603 : [1923] ALL E.R. Rep. 442 (HL)
21
illegal restraint or confinement. It is of immemorial
antiquity, an instance of its use occurring in the
thirtythird 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.”
22. In Ranjit Singh v. State of Pepsu (now Punjab)3, after
referring to Greene v. Secy. of States for Home Affairs 4, this
Court ruled:
“4. … the whole object of proceedings for a writ of
habeas corpus is to make them expeditious, to keep
them as free from technicality as possible and to
keep them as simple as possible.”
The Bench quoted Lord Wright who, in Greene’s case, had
stated:
“… The incalculable value of habeas corpus is that it
enables the immediate determination of the right to
the applicant’s freedom.”
23. In Kanu Sanyal v. District Magistrate, Darjeeling and
Others5, a Constitution Bench, after adverting to the brief history
of the writ of habeas corpus, opined that it is essentially a
procedural writ that deals with the machinery of justice and not
a substantive law. The object of the writ is to secure release of a
3 AIR 1959 SC 843
4 [1942] AC 284 : [1941] 3 All ER 388 (HL)
5 (1973) 2 SCC 674
22
person who is illegally restrained of his liberty. The Court further
elaborated:
“… The writ of habeas corpus is one of the most
ancient writs known to the common law of England.
It is a writ of immemorial antiquity and the first
threads of its origin are woven deeply within the
“seamless web of history” and they are concealed
and perhaps untraceable among countless incidents
that constituted the total historical pattern.”
24. Tracing the history, the Court proceeded to explicate:
“The writ of habeas corpus cum causa made its
appearance in the early years of the fourteenth
century. It not merely commanded the Sheriff to
“have the body” of the person therein mentioned like
its predecessor but added the words “with the cause
of the arrest and detention”. The person who had
the custody of a prisoner was required by this writ
to produce him before the Court together with the
ground for the detention. The writ thus became a
means of testing the legality of the detention and in
this form it may be regarded as the immediate
ancestor of the modern writ of habeas corpus. The
writ of habeas corpus cum causa was utilised by the
common law courts during the fifteenth century as
an accompaniment of the writs of certiorari and
privilege to assert their jurisdiction against the local
and franchise courts.”
25. In Ware v. Sanders6, a reference was made to the Law of
Habeas Corpus by James A Scott and Charles C. Roe of the
Chicago Bar (T.H. Flood & Company, Publishers, Chicago,
6 146 Iowa 233 : 124 NW 1081 (1910)
23
Illinois, 1923) where the authors have dealt with the aspect of
Habeas Corpus. It reads as under:
“A writ of habeas corpus is a writ of right of very
ancient origin, and the preservation of its benefit is
a matter of the highest importance to the people,
and the regulations provided for its employment
against an alleged unlawful restraint are not to be
construed or applied with over technical nicety, and
when ambiguous or doubtful, should be interpreted
liberally to promote the effectiveness of the
proceeding.”
(See Ummu Sabeena v. State of Kerala and
Others7)
26. In Ummu Sabeena, the Court further ruled that 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.
27. 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
7 (2011) 10 SCC 781
24
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. The issue will be a different one when the
detention is not illegal. What is seminal is to remember that the
song of liberty is sung with sincerity and the choice of an
individual is appositely respected and conferred its esteemed
status as the Constitution guarantees. It is so as the expression
of choice is a fundamental right under Articles 19 and 21 of the
Constitution, if the said choice does not transgress any valid legal
framework. Once that aspect is clear, the enquiry and
determination have to come to an end.
28. In the instant case, the High Court, as is noticeable from
the impugned verdict, 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 respondent No. 9
herein with the appellant. It felt perturbed. As we see, there was
nothing to be taken exception to. Initially, Hadiya had declined to
25
go with her father and expressed her desire to stay with the
respondent No.7 before the High Court and in the first writ it had
so directed. 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. True it is, she had gone with
the respondent No.7 before the High Court but that does not
mean and can never mean that she, as a major, could not enter
into a marital relationship. But, the High Court unwarrantably
took exception to the same 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.
29. 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
26
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.
30. The High Court has been swayed away by the strategy, as it
thought, adopted by the respondent No.7 before it in connivance
with the present appellant and others to move Hadiya out of the
country. That is not within the ambit of the writ of Habeas
Corpus. The future activity, if any, is required to be governed and
controlled by the State in accordance with law. The apprehension
was not within the arena of jurisdiction regard being had to the
lis before it.
31. 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
27
caretaker, and to act as the parent of any child or individual who
is in need of protection. “The parens patriae jurisdiction is
sometimes spoken of as ‘supervisory’” 8.
32. 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. Lindley
L.J. in Thomasset v. Thomasset9 pointed out that in the
exercise of the Parens Patriae jurisdiction, “the rights of fathers
and legal guardians were always respected, but controlled to an
extent unknown at common law by considering the real welfare.”
The duty of the King in feudal times to act as Parens Patriae has
been taken over in modern times by the State.
33. Black’s Law Dictionary defines ‘Parens Patriae’ as:
“1. The State regarded as a sovereign; the state in
its capacity as provider of protection to those unable
to care for themselves.
2. A doctrine by which a government has
standing to prosecute a lawsuit on behalf of a
citizen, especially on behalf of someone who is
under a legal disability to prosecute the suit. The
State ordinarily has no standing to sue on behalf of
8 P.W. Yong, C Croft and ML Smit, On Equity.
9 [1894] P 295
28
its citizens, unless a separate, sovereign interest will
be served by the suit.”
34. In Charan Lal Sahu v. Union of India10, the Constitution
Bench, while delving upon the concept of parens patriae, 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. …”
10 (1990) 1 SCC 613
29
35. In Anuj Garg and Others v. Hotel Association of India
and others11, a twoJudge Bench, while dealing with 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:
(i) in terms of its necessity, and
(ii) assessment of any tradeoff or adverse impact, if
any.
This inquiry gives the doctrine an objective orientation
and therefore prevents it from falling foul of due
process challenge. (See City of Cleburne v. Cleburne
Living Center12)”
11 (2008) 3 SCC 1
12 473 US 432, 439-41: 105 S Ct 3249 : 87 L Ed 2d 313 (1985)
30
36. Analysing further, the Court ruled that the parens patriae
power is subject to constitutional challenge on the ground of
right to privacy also. It took note of the fact that young men and
women know what would be the best offer for them in the service
sector and in the age of internet, they would know all pros and
cons of a profession. The Court proceeded to state:
“31. … It is their life; subject to constitutional,
statutory and social interdicts—a citizen of India
should be allowed to live her life on her own terms.”
37. Emphasizing on the right of selfdetermination, the Court
held:
“34. The fundamental tension between autonomy and
security is difficult to resolve. It is also a tricky
jurisprudential issue. Right to selfdetermination is an
important offshoot of gender justice discourse. At the
same time, security and protection to carry out such
choice or option specifically, and state of violencefree
being generally is another tenet of the same movement.
In fact, the latter is apparently a more basic value in
comparison to right to options in the feminist matrix.”
38. In Aruna Ramachandra Shanbaug v. Union of India13,
the Court, after dealing with the decision in State of Kerala v.
N.M. Thomas14 wherein it has been stated by Mathew, J. that
13 (2011) 4 SCC 454
14 (1976) 2 SCC 310
31
“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.”
39. Constitutional Courts in this country exercise parens
patriae jurisdiction in matters of child custody treating the
welfare of the child as the paramount concern. There are
situations when the Court can invoke the parens patriae principle
and the same is required to be invoked only in exceptional
situations. We may like to give some examples. For example,
where a person is mentally ill and is produced before the court in
a writ of habeas corpus, the court may invoke the aforesaid
doctrine. On certain other occasions, when a girl who is not a
major has eloped with a person and she is produced at the
behest of habeas corpus filed by her parents and she expresses
fear of life in the custody of her parents, the court may exercise
the jurisdiction to send her to an appropriate home meant to give
32
shelter to women where her interest can be best taken care of till
she becomes a major.
40. In Heller v. Doe15, Justice Kennedy, speaking for the U.S.
Supreme Court, observed:
“The State has a legitimate interest under its Parens Patriae
powers in providing care to its citizens who are unable to
care for themselves.”
41. The Supreme Court of Canada in E. (Mrs.) v. Eve16 observed
thus with regard to the doctrine of Parens Patriae:
“The Parens Patriae jurisdiction for the care of the
mentally incompetent is vested in the provincial
superior courts. Its exercise is founded on
necessity. The need to act for the protection of
those who cannot care for themselves. The
jurisdiction is broad. Its scope cannot be defined.
It applies to many and varied situations, and a court
can act not only if injury has occurred but also if it
is apprehended. The jurisdiction is carefully
guarded and the courts will not assume that it has
been removed by legislation.
While the scope of the parens partiae 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, a caution that must increase with the
seriousness of the matter. This is particularly so in
cases where a court might be tempted to act
15 509 US 312 (1993)
16 [1986] 2 SCR 388
33
because failure to act would risk imposing an
obviously heavy burden on another person.”
42. The High Court of Australia in Secretary, Department of
Health and Community Service v. J.W.B. and S.M.B.17,
speaking through Mason C.J., Dawson, Toohey and Gaudron JJ.,
has made the following observations with regard to the doctrine:
“71. No doubt the jurisdiction over infants is for the
most part supervisory in the sense that the courts
are supervising the exercise of care and control of
infants by parents and guardians. However, to say
this is not to assert that the jurisdiction is
essentially supervisory or that the courts are merely
supervising or reviewing parental or guardian care
and control. As already explained, the Parens
Patriae jurisdiction springs from the direct
responsibility of the Crown for those who cannot
look after themselves; it includes infants as well as
those of unsound mind.”
43. Deane J. in the same case stated the following:
“4… Indeed, in a modern context, it is preferable to refer to
the traditional Parens Patriae jurisdiction as “the welfare
jurisdiction” and to the “first and paramount consideration”
which underlies its exercise as “the welfare principle”.”
44. Recently, the Supreme Court of New South Wales, in the
case of AC v. OC (a minor)18, has observed:
17 [1992] HCA 15 (MARION’S Case) : (1992) 175 CLR 218
18 [2014] NSWSC 53
34
“36. That jurisdiction, protective of those who are
not able to take care of themselves, embraces (via
different historical routes) minors, the mentally ill
and those who, though not mentally ill, are unable
to manage their own affairs: Re Eve [1986] 2 SCR
388 at 407417; Court of Australia in Secretary,
Department of Health and Community Services v.
JWB and SMB (Marion’s Case (1992) 175 CLR 218 at
258; PB v. BB [2013] NSWSC 1223 at [7][8], [40]
[42], [57][58] and [64][65].
37. A key concept in the exercise of that
jurisdiction is that it must be exercised, both in
what is done and what is left undone, for the
benefit, and in the best interest, of the person (such
as a minor) in need of protection.”
45. Thus, the Constitutional Courts may also act as Parens
Patriae so as to meet the ends of justice. But 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.
46. Mr. Shyam Divan, learned senior counsel for the first
respondent, has submitted that the said doctrine has been
35
expanded by the England and Wales Court of Appeal in a case DL
v. A Local Authority and others19. The case was in the context
of "elder abuse" wherein a man in his 50s behaved aggressively
towards his parents, physically and verbally, controlling access to
visitors and seeking to coerce his father into moving into a care
home against his wishes. While it was assumed that the elderly
parents did have capacity within the meaning of the Mental
Capacity Act, 2005 in that neither was subject to "an impairment
of, or a disturbance in the functioning of the mind or brain", it
was found that the interference with the process of their decision
making arose from undue influence and duress inflicted by their
son. The Court of Appeal referred to the judgment in Re: SA
(Vulnerable Adult with Capacity : Marriage)20 to find that the
parens patriae jurisdiction of the High Court existed in relation to
"vulnerable if 'capacitous' adults". The cited decision of the
England and Wales High Court (Family Division) affirmed the
existence of a "great safety net" of the inherent jurisdiction in
relation to all vulnerable adults. The term "great safety net" was
coined by Lord Donaldson in the Court of Appeal judgment which
19 [2012] 3 All ER 1064
20 [2005] EWHC 2942 (FAM)
36
was later quoted with approval by the House of Lords in In Re F
(Mental Patient: Sterilisation21. In paragraph 79 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.”
47. In relation to Article 8 of the European Convention on Human
Rights (ECHR), Justice Munby observes in paragraph 66:
“In terms of the ECHR, the use of the inherent
jurisdiction in this context is compatible with Article 8
in just the same manner as the MCA 2005 is
compatible. Any interference with the right to respect
for an individual's private or family life is justified to
protect his health and or to protect his right to enjoy
his Article 8 rights as he may choose without the undue
influence (or other adverse intervention) of a third
party. Any orders made by the court in a particular
case must be only those which are necessary and
21 [1990] 2 AC 1
37
proportionate to the facts of that case, again in like
manner to the approach under the MCA 2005.”
48. However, in paragraph 76, he qualifies the above principle
with the following comment:
“It is, of course, of the essence of humanity that
adults are entitled to be eccentric, entitled to be
unorthodox, entitled to be obstinate, entitled to be
irrational. Many are.”
49. The judgment of Re: SA (Vulnerable Adult with
Capacity : Marriage) (supra) authored by Justice Munby and
cited in the above Court of Appeal case was in the context of the
exercise of parens patriae to protect an eighteen year old girl from
the risk of an unsuitable arranged marriage on the ground that
although the girl did not lack capacity, yet she was undoubtedly
a "vulnerable adult".
50. Interestingly, in another case, namely, A Local Authority
v. HB, MB, ML and BL (By their Children's Guardian)22, the
High Court's inherent jurisdiction was invoked to protect children
who were allegedly going to be taken by their mother to Syria
where they were at a risk of radicalization. Although the High
22 [2017] EWHC 1437 (Fam)
38
Court dismissed the applications on facts for want of evidence,
yet it made certain observations regarding extremism and
radicalization.
51. Mr. Divan has drawn our attention to the authority in A
Local Authority v. Y23 wherein the High Court (Family Division)
invoked its inherent jurisdiction to protect a young person, the
defendant Y, from radicalization.
52. Relying upon the aforesaid decisions, he emphasized on the
concept that when the major is a vulnerable adult, the High
Court under Article 226 of the Constitution of India can exercise
the parens patriae doctrine which has been exercised in this
case. The aforesaid judgments, in our considered opinion, are not
applicable to the facts of the present case. We say so without any
hesitation as we have interacted with the respondent No. 9 and
there is 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.
23 [2017] EWHC 968 (Fam)
39
53. It is obligatory to state here that expression of choice in
accord with law is acceptance of individual identity. Curtailment
of that expression and the ultimate action emanating therefrom
on the conceptual structuralism of obeisance to the societal 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, we would
like to call it indispensable preliminary condition.
40
54. 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. Sans lawful sanction, the
centripodal value of liberty should allow an individual to write
his/her script. The individual signature is the insignia of the
concept.
55. 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 between
the appellant and the respondent no.9 when both stood
embedded to their vow of matrimony.
56. Resultantly, we allow the appeal and set aside the impugned
order. However, as stated in the order dated 08.03.2018, the
41
investigation by the NIA in respect of any matter of criminality
may continue in accordance with law. The investigation should
not encroach upon their marital status.
………………………………CJI
(Dipak Misra)
……………………………….J.
(A.M. Khanwilkar)
New Delhi;
09 April, 2018.
42
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No 366 OF 2018
[Arising out of SLP (Crl) No.5777 of 2017]
SHAFIN JAHAN APPELLANT
Versus
ASOKAN K M AND OTHERS .....RESPONDENTS
JUDGMENT
Dr D Y CHANDRACHUD, J 1 While re-affirming the conclusions set out in the operative order, I agree with the erudite judgment of the learned Chief Justice. I have added my own thoughts on the judicial parchment to express my anguish with the grievous miscarriage of justice which took place in the present case and to formulate principles in the expectation that such an injustice shall not again be visited either on Hadiya or any other citizen. The High Court of Kerala has committed an error of jurisdiction. But what to my mind, is disconcerting, is the manner in 43 which the liberty and dignity of a citizen have been subjected to judicial affront. The months which Hadiya lost, placed in the custody of her father and against her will cannot be brought back. The reason for this concurring judgment is 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. 2 Asokan, the father of Akhila alias Hadiya moved a habeas corpus petition before the High Court of Kerala. His apprehension was that his daughter was likely to be transported out of the country. The Kerala High Court was informed during the course of the hearing that she had married Shafin Jahan. The High Court allowed the petition for habeas corpus and directed that Hadiya shall be escorted from a hostel in which she resided in Ernakulam to the house of her father holding that:
“A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways. This Court exercising parens patriae jurisdiction is concerned with the welfare of a girl of her age. The duty cast on this Court to ensure the safety of at least the girls who are brought before it can be discharged only by ensuring that Ms. Akhila is in safe hands.”
3 With these directions, the Division Bench of the Kerala High Court declared that the marriage between Hadiya and Shafin Jahan is null and void and ordered “a comprehensive investigation” by the police. Hadiya continued to remain, against her will, in compulsive confinement at the home of her father in pursuance of the directions of the Kerala High Court. On 27 44 November 2017, this Court interacted with Hadiya and noted that she desires to pursue and complete her studies as a student of Homeopathy at a college where she was a student, in Salem. Accepting her request, this Court directed the authorities of the State to permit her to travel to Salem in order to enable her to pursue her studies.
4 The appeal filed by Shafin Jahan has been heard finally. Hadiya is a party to these proceedings.
5 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.
6 Hadiya is a major. Twenty four years old, she is pursuing a course of studies leading up to a degree in Homoeopathic medicine and surgery at a college in Salem in Tamil Nadu. She was born to parents from the Ezhava Community. In January 2016, Asokan instituted a habeas corpus petition, stating that Hadiya was missing. During the course of the proceedings, 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 45 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.
7 During the course of the proceedings, the High Court interacted with Hadiya. She appeared in the proceedings represented by an advocate. Hadiya, as the High Court records, declined to accompany her parents and expressed a desire to continue to reside at Sathyasarani. The High Court initially issued a direction that she should be “accommodated in a ladies’ hostel at the expense of her father”. On 27 September 2016, Hadiya made a serious grievance of being in the custody of the court for thirty five days without being able to interact with anyone. She stated that she had no passport and the allegation that she was likely to go to Syria was incorrect. Based on her request, the High Court directed her to reside at the Sathyasarani establishment. The High Court heard the case on 24 October 2016, 14 November 2016 and 19 December 2016. 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”.
46Confronted with the undisputed fact that Hadiya is a major, the High Court still observed:
“This Court exercising Parens Patriae jurisdiction has a duty to ensure that young girls like the detenue are not exploited or transported out of the country. Though the learned Senior Counsel has vociferously contended that the detenue is a person who has attained majority, it is necessary to bear in mind the fact that the detenue who is a female in her twenties is at a vulnerable age. As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married. We consider it the duty of this Court to ensure that a person under such a vulnerable state is not exposed to further danger, especially in the circumstances noticed above where even her marriage is stated to have been performed with another person, in accordance with Islamic religious rites. That too, with the connivance of the 7 th respondent with whom she was permitted to reside, by this Court.” Hadiya was under judicial order transported to a hostel at Ernakulam, with a direction that:
“she is not provided the facility of possessing or using a mobile phone.” Save and except for her parents no one was allowed to meet her. An investigation was ordered into the “education, family background, antecedents and other relevant details” of Shafin Jahan together with others involved in the ‘conduct’ of the marriage. The High Court continued to monitor the case on 6 January 2017, 31 January 2017, 7 February 2017 and 22 February 2017.
Eventually, by its judgment and order dated 24 May 2017, the High Court allowed the petition for habeas corpus and issued the directions noted above.47
8 The principal findings which have been recorded by the High Court need to be visited and are summarised below:
(i) This was “not a case of a girl falling in love with a boy of a different religion and wanting to get married to him” but an “arranged marriage” where Hadiya had no previous acquaintance with Shafin Jahan;
(ii) Hadiya met Shafin Jahan on an online portal called “Way to Nikah”;
(iii) During the course of the proceedings, Hadiya had stated before the court that she desired to complete her studies as a student of Homeopathy and “nobody had a case at that time that she wanted to get married”;
(iv) Though on 19 December 2016, the High Court adjourned the hearing to 21 December 2016 to enable her to proceed to her college, the marriage took place on the same day;
(v) The marriage was “only a make-believe intended to take the detenue out of reach of the hands of this court”;
(vi) The conduct of the parties in conducting the marriage without informing the court was unacceptable;
(vii) There is no document evidencing the conversion of Hadiya to Islam; the antecedents of Shafin Jahan and his Facebook posts show a radical inclination; and
(viii) No prudent parent would decide to get his daughter married to a person accused in a criminal case.
The High Court concluded that the marriage “is only a sham and is of no consequence”, a charade to force the hands of the court. 48 9 During the course of the present proceedings, this Court by its order dated 30 October 2017 directed the First respondent to ensure the presence of his daughter on 27 November 2017. On 27 November 2017, Hadiya stated before this Court, in the course of the hearing, that she intends to pursue further studies towards the BHMS degree course at Salem, where she was admitted. Directions were issued by the Court to ensure that Hadiya can pursue her course of studies without obstruction. We clarified that while she could stay in the hostel of the college as she desired, she would be “treated like any other student”.
10 Hadiya has filed an affidavit expressly affirming her conversion to Islam and her marriage to Shafin Jahan.
11 There are two serious concerns which emerge from the judgment of the Kerala High Court. The first is that the High Court transgressed the limits of its jurisdiction in issuing a declaration annulling the marriage of Shafin Jahan and Hadiya in the course of the hearing of a habeas corpus petition. 12 Undoubtedly, the powers of a constitutional court are wide, to enable it to reach out to injustice. Mr Shyam Divan, learned senior counsel appearing on behalf of First respondent emphasised the plenitude of the inherent powers of the High Court. The width of the domain which is entrusted to the High 49 Court as a constitutional court cannot be disputed. Halsbury’s Laws of England postulates:
“In the ordinary way the Supreme Court, as a superior court of record, exercise the full plenitude of judicial power in all matters concerning the general administration of justice within its territorial limits, and enjoys unrestricted and unlimited powers in all matters of substantive law, both civil and criminal, except insofar as that has been taken away in unequivocal terms by statutory enactment. The term “inherent jurisdiction” is not used in contradistinction to the jurisdiction of the court exercisable at common law or conferred on it by statute or rules of court, for the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or rule of court. The jurisdiction of the court which is comprised within the term “inherent” is that which enables it to fulfil itself, properly and effectively, as a court of law.” Dealing with the ambit of the powers under Article 226, Gajendragadkar, CJ in State of Orissa v Ram Chandra Dev and Mohan Prasad Singh Deo 24 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.” While dealing with the powers and privileges of the state legislatures, in Keshav Singh25, a Bench of seven learned judges held thus: 24 AIR (1964) SC 685 25 (1965) 1 SCR 413 50 “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 [Halsbury's Law of England, Vol. 9, p. 349] ”.
The High Court is vested with an extra-ordinary jurisdiction in order to meet unprecedented situations (T K Rangarajan v Government of T.N.26). Several decisions have noted the inherent and plenary powers of the High Court. Their purpose is to advance substantial justice. (i) Roshan Deen v Preeti Lal27; (ii) Dwarka Nath v ITO, Special Circle D-ward, Kanpur 28; (iii) Naresh Shridhar Nirajkar v State of Maharashtra29; and (iv) M V Elisabeth v Harwan Investment and Trading (P) Ltd.30 13 These principles which emerge from the precedent are well-settled. Equally the exercise of all powers by a constitutional court must ensure justice under and in accordance with law.
14 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, Delhi31, a three-judge 26 (2003) 6 SCC 581 27 (2002) 1 SCC 100 28 (1965) 3 SCR 536 29 (1966) 3 SCR 744 30 1993 Suppl. (2) SCC 433 31 (1976) 3 SCC 234 51 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:
“…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.” 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 K32 a two judge Bench of this Court observed thus:
“3…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 U P33, 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
32 (2009) 16 SCC 360 33 (2006) 5 SCC 475 52 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.” Reiterating these principles in Bhagwan Dass v State (NCT OF DELHI)34, 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 Soni Gerry v Gerry Douglas35, 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
34 (2011) 6 SCC 396 35 (2018) 2 SCC 197 53 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.” These principles emerge from a succession of judicial decisions. Fundamental to them is the judgment of a Constitution bench of this Court in Kanu Sanyal v District Magistrate, Darjeeling36.
15 The High Court was seized of the grievance of Asokan that his daughter was under illegal confinement and was likely to be transported out of the country. In the course of the hearing of an earlier petition for habeas corpus, the High Court by its order dated 19 January 2016 expressly noticed that Hadiya was not willing to return to her parental home. Taking note of the desire of Hadiya to reside at Sathyasarani, the High Court observed that “the alleged detenue needs to be given liberty to take her own decision with respect to her future life.” 36 (1973) 2 SCC 674 54 With the passing of that order the writ petition was withdrawn on 25 January 2016. Yet, again, when a second petition was filed, it was evident before the High Court that Hadiya had no desire to stay with her parents. She is a major. The Division Bench on this occasion paid scant regard to the earlier outcome and to the decision of a coordinate Bench. The High Court inexplicably sought to deviate from the course adopted in the earlier proceeding. 16 The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a ‘just’ way of life or ‘correct’ course of living for Hadiya. She has absolute autonomy over her person. Hadiya appeared before the High Court and stated that she was not under illegal confinement. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226. The purpose of the habeas corpus petition ended. It had to be closed as the earlier Bench had done. The High Court has entered into a domain which is alien to its jurisdiction in a habeas corpus petition. The High Court did not take kindly to the conduct of Hadiya, noting that when it had adjourned the proceedings to issue directions to enable her to pursue her studies, it was at that stage that she appeared with Shafin Jahan only to inform the court of their marriage. How Hadiya chooses to lead her life is entirely a matter of her choice. The High Court’s view of her lack of candour with the court has no bearing on the legality of her marriage or her right to decide for herself, whom she desires to live with or marry.
5517 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. That is the second facet to which we now turn.
18 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. The conditions for a valid Muslim marriage are:
(i) Both the individuals must profess Islam;
(ii) Both should be of the age of puberty;
(iii) There has to be an offer and acceptance and two witnesses must be
present;
(iv) Dower and Mehar; and
(v) Absence of a prohibited degree of relationship.
19 A marriage can be dissolved at the behest of parties to it, by a
competent court of law. Marital status is conferred through legislation or, as the case may be, custom. Deprivation of marital status is a matter of serious import and must be strictly in accordance with law. 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 56 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.
20 Article 16 of the Universal Declaration of Human Rights underscores the fundamental importance of marriage as an incident of human liberty:
“Article 16. (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.57
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”
21 The right to marry a person of one’s choice is integral to Article 21 of the 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.
5822 In Justice K S Puttaswamy v Union of India37, 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 India38, 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.” 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.
23 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 was of the view that at 37 2017 (10) SCC 1 38 Writ Petition(Civil) No. 215 of 2005 59 twenty four, Hadiya “is weak and vulnerable, capable of being exploited in many ways”. 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. 24 Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms. Others are dissuaded to exercise their liberties 60 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. 25 We have not been impressed with the submission of Mr Shyam Divan, learned senior counsel that it was necessary for the High Court to nullify, what he describes as a fraud on the Court, as an incident of dealing with conduct obstructing the administration of the justice. 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. Constitutionally it could have no bearing on the outcome. 26 During the course of the proceedings, this Court by its interim order had allowed the National Investigation Agency to assist the Court. Subsequently, NIA was permitted to carry out an investigation. We clarify that NIA may exercise its authority in accordance with the law within the bounds of the authority conferred upon it by statute. However, the validity of the marriage 61 between Shafin Jahan and Hadiya shall not form the subject matter of the investigation. Moreover, nothing contained in the interim order of this Court will be construed as empowering the investigating agency to interfere in the lives which the young couple seeks to lead as law abiding citizens. 27 The appeal stands allowed in terms of our order dated 8 March 2018. The judgment of the High Court is set aside.
...…............................................J [Dr D Y CHANDRACHUD] New Delhi;
April 09, 2018.