By Mehr Kaur
The Supreme Court of India on 8th March, 2018, in a surprising yet vital order set aside the decision of the Kerala High Court that annulled the marriage between Akhila Asokan aka Hadiya and Shafin Jahan. The case is not one to be remembered for its decision by the High Court based on the idea of patriarchal autocracy and possibly self obsession with the feeling that a female is a chattel but for the display of the strength of our Constitution that shows acceptance of the plurality and diversity of our different syncretic cultures as artistically pointed out by the Supreme Court.
The facts revolving around this case involve a Habeas Corpus petition being filed by Hadiya’s father who was under an impression that his daughter was likely to be transported out of the country and concerns her conversion to Islam and subsequent marriage to a Muslim man named Shafin Jahan. Her father claimed that Hadiya was converted after being radicalized. As a result of this the High Court directed Hadiya to her father’s house saying: “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… As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married.”
Giving these directions the High Court annulled the marriage between Hadiya and Shafin Jahan and directed her to reside at her father’s house against her will.
Hadiya’s husband then filed a Special Leave Petition before the Hon’ble Supreme Court challenging the decision of the Kerala High Court saying that the order was an insult to the independence of the women of India and compels them to think of themselves as weak and incapable of making their own decisions and is against their fundamental rights.
The 3 judge Bench of the Supreme Court led by Chief Justice Dipak Misra were of the view that the High Court in exercise of the jurisdiction to declare the marriage null and void, while entertaining a petition of habeas corpus were plainly in excess of judicial power. Observing that the faith of a person was intrinsic to a person’s meaningful existence, the court said that “Choosing a faith is the substratum of individuality and sans it; the right of choice becomes a shadow.”
While referring to Hadiya’s father’s contentions that there was immense transgression of his rights to protect his daughter’s interests, the Apex Court said that though his beliefs and intentions may arise out of love and protection for his daughter the same cannot be allowed to curtail her fundamental rights specially when she is a major and capable of making her own decisions. The court stated that she has absolute autonomy over her person.
Hadiya had appeared before the court and had categorically stated that she had converted into Islam by her own free will in the affidavit saying: “I embraced the faith/ religion of Islam on my choice as per my conscience and on my own free will after studying about Islam and thereafter I married a person, namely Shafin Jahan, from the same faith as per my choice and on my own free will.”
Justice D Y Chandrachud wrote separate concurring order and stated that right to marry a person of one’s choice is integral to Article 21 of the Constitution which cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. 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.
Another concern for this Court to intervene in this case was of the application of the doctrine of “parens patriae”. The High Court despite being confronted of the fact that Hadiya was a major stated, while exercising parens patriae jurisdiction, that the court had a duty to ensure that young girls like the detenue (Hadiya) were not exploited or transported out of the country. However, the Supreme Court clarified the usage and applicability of the doctrine by explaining the requirement being limited only in case of persons who are incapable of asserting a free will such as minors or persons of unsound mind. The exercise of jurisdiction should not in any case transgress into an area of determining the suitability of partners to a marital life which exclusively rests with the individuals themselves; neither the society nor the state can intrude into that domain.
However, the Supreme Court with reference to the point of Hadiya being taken out of country did not preclude itself of its powers to look into case and demanded to know what charges the National Investigation Agency (NIA) had invoked against Hadiya’s husband Shafin Jahan as being involved in unlawful activities.
The Apex Court in its order finally concluded that even though it has given the National Investigation Agency power to exercise its authority in accordance with law to probe into the matter, it has clearly stated that the validity of Hadiya and Shafin Jahan’s marriage shall not form subject matter of the probe and that the decision of the Kerala High Court annulling their marriage stands quashed.