BY MISS SHALINI DHYANI
IN THE SUPREME COURT OF INDIA
|NAME OF THE CASE
|Shafin Jahan vs Ashokan K.M.
|CRIMINAL APPEAL NO. 366 OF 2018 ( Arising Out Of S.L.P. (Crl.) No.5777 of (2017)
|DATE OF THE CASE
|April 09, 2018
|Ashokan K.M. and others
|D.Y. Chandrachud, A.M. Khanwilakr J, Arun Mishra J, Dipak Mishra
|STATUTES/ CONSTITUION INVOLVED
|Constitution of India. The Hindu Marriage Act, Special Marriage Act.
|IMPORTANT SECTIONS/ ARTICLES
|Constitution of India— Article 19, 21, 226,32
“Marriage is not about finding the right age; it’s about finding the right person.” —Sophia Bush
Marriage is a pious union of two souls; it is considered sacrosanct in Hindu marriage and a contract in Muslim law. It is a social institution and an integral part of mankind. Marriage to another religion, caste, or person against your parent’s choice is still taboo in India; it is like making a mountain out of a molehill. Marriage had become a status symbol in society. The concept of marriage has radically changed, either because of wrong notions like dowry, which shows the notion of wealth in marriage, or because of the Special Marriage Act 1955, which provides registration of marriage with no ceremony between a person of a different caste or religion. The present case defines a woman’s right to marry the person of her choice in India. As per Indian society, a marriage is not a union between two souls but a union between two families. Due to this, the choice to get married to a person of one’s choice is subjected to so many restrictions, which are socially sanctioned but not legally. Article 16 of the Universal Declaration of Human Rights does not consider the right to marry a fundamental or constitutional right under the Indian Constitution but has been developed through judicial decisions, which are discussed further.
Freedom of choice is an essential part of an individual’s life. The quality of life depends on the freedom one ensures; ensuring freedom of choice and religious freedom is a modern and formal concept. A most popular word has been seen in many circumstances, especially in economics: laissez-faire, which is an idea that defines no government intervention in the affairs of an individual. Freedom can have different meanings for different individuals. Under Article 19 of the Constitution of India, there is freedom of speech, which includes the freedom to speak and the choice to remain silent. Similarly, the constitution guarantees freedom of religion or free exercise of religion, and it is noted that choice is not an integral part of any religion. The case revolves around personal freedom, religious conversion, and individual liberty under Article 21, which also includes the right to privacy as well as the right to choice.
The case of Shafin Jahan vs. Ashokan K.M. was infamously known as the Love-Jihad Case by the media. This case refers to a legal controversy in India regarding a young woman named Hadiya (earlier known as Akhila Ashokan) and her decision to convert to Islam. Her decision to convert and marry a Muslim man named Shafin Jahan sparked a series of events that raised several questions on religious freedom, individual liberty, and autonomy. The case came into the limelight due to allegations of forced conversion, Hadiya’s right to marry, and her choice.
WHAT CONSTITUTES FREEDOM OF CHOICE?
No one in present time likes to confined through rules and regulations especially youth, In India we have often see youth rebelling against rules and regulations in the name of freedom of expression or freedom of choice. There main reason behind rebel is that they are grown up and they are capable of making their own choices. From allowing phone to the campus to marry to the person you love choices had been differed. The nature of the freedom which is granted to an individual can be understood through a Principle of Interconnectedness. This is very helpful in understanding that all are interconnected, therefore whatever we do, think affects everyone around us. And that freedom of choice which Do not violate the principle of interconnectedness is considered to be beneficial.
WHAT IS RELIGIOUS FREEDOM IN CONSTITUTUION OF INDIA?
“There is only one religion, though there hundreds of version of it”. George Bernard Shaw
India has been considered as a homeland for many of the religion due to which it is known as land of spiritual belief, cultural diversity. Views on religion varies from individual to individual; it is matter of choice and belief. When it comes to India the people of India has a strong or wide faith in religion. The reason behind wide faith is that religion has holds special place in their lives.
Fundamental rights are guaranteed under part III of Indian constitution. Freedom of religion is provided under Article25-28 of Indian Constitution. India is a secular country which allows it’s citizen right to follow their beliefs. When it comes to exercising one’s religious belief India is unbiased, neutral and impartial. No citizen is deprived of his right to practice, profess and propagate his or her religion. It is clearly defined that Indian constitution furnishes Freedom of Religion Not Freedom From Religion.
Essential conditions of valid marriage under Muslim law:
- Both man and women must be of Islam origin.
- There should be an offer and acceptance of that offer in the presence of two witnesses.
- There should be capacity of parties
- There should be free consent
- And there should be no legal disability.
- Absence of a prohibited degree of relationship.
Essential conditions of a valid Hindu marriage under Hindu marriage Act.
- There should not be any other spouse living at a time of marriage.
- There should not be mental incapacity or unsoundness.
- Both should attend age of puberty.
- Both should not fall into prohibited degree of relationship.
- Both should not fall into sapinda relationship.
FACTS OF THE CASES:
Akhila Ashokan (Hadiya), born in Kerala, Coimbatore, is the only daughter of Ashokan K.M., who was pursuing a BHMS course at Shivraj Homoeopathy Medical College, Salem. She had a close relationship with Miss Jaseena and Miss Faseena, and she learned the principles of Islam. She got influenced by Islam and converted to Islam, being of majority age. She did not want to tell her family about her conversion, as she was brought up in a strict Hindu family. She thought that her father would not let her live after her conversion, so she decided to leave her paternal home.
Her father, after this incident, filed a writ of habeas corpus in which he alleged that his daughter was converted to Islam against her will or forcefully by her two friends. But the Kerala High Court in this petition found out that there was no forceful conversion; it was all done according to her will, and it was cleared that she left her home on her own volition. She was directed to stay at the hostel named Markazul Hidaya Satyasarani Educational and Charitable Trust at Karuvambram Manjeri, where she continued her studies.
After the disposal of the first writ petition, Ashokan K.M. filed a new writ petition of Habeas Corpus on the grounds of forced conversions and radicalization of Akhila and links of Shafin Jahan and her family with extremist Islamic organisations. Later on, Akhila got married to Shafin Jahan on December 19, 2016, according to Islamic rites. Again, her father challenged the validity of the marriage. Hadiya (Akhila) in her high court proceedings was content that she is an adult, she is not a minor, and she is under 25 years of age, so she is competent enough to make the decision of who is getting married. She was content that marrying Shafin Jhan was of her own volition.
On May 24, 2017, High Court Justices Surendra Mohan Kuriakose and Abhram Mathew nullified the marriage and called it a sham. Their judgement observes that marriage is an important part of an individual’s life that can be taken only with the active participation and involvement of parents. Here, the justices ignored the fact that a legal adult was not subject to parental custody as they granted Mr. Ashokan custody over her daughter.
This judgement is erroneous on several grounds:
- That the implicated judgement is clearly violative of articles 14, 21, and 25 of Akhila.
- There is a violation of the Principle Of Res Judicta as there was no illegal confinement of Akhila at the hostel as she was living there according to her own will.
As in Lata Singh v. State Of UP, the Honourable Court held that in a democratic and secular country like India, the choice of whom to marry lies within the individual only, and parents cannot force an individual to marry. The impugned judgement was against this case precedent, so it should be struck down. This impugned judgement harms or insults women’s independence as it takes away their right to think for themselves, branding them as weak people.
Subsequently, Hadiya’s husband challenged the judgement and approached the Supreme Court on March 8, 2018. The Supreme Court set aside the Kerala High Court judgement, and on April 9, 2018, the Supreme Court held that a marriage cannot be simply annulled if two consulting adults are entering into the marriage bond by invoking Article 226.
Later, Chief Justice Khehar shifted the matter to the National Investigation Agency to investigate Hadiya’s marriage, but this case was shifted to Chief Justice Mishra as former Chief Justice Khehar was retired. Perhaps C.J.I. Mishra recognised the problematic nature of the NIA investigation, and he never called the NIA to present its report during the hearings.
- Whether the marriage between Hadiya and Shafin was valid even though they are legal adult and had consent to their marriage?
- Whether person has absolute right over their personal life i.e. personal autonomy and choice?
- Whether under Article 226 High Court can exercise the writ of Habeas Corpus?
ARGUMENTS FROM APPELLANT SIDE:
- On August 7th 2018 argument started with Mr. Haris Beeran, appearing for petitioner side opposed the involvement of NIA in private matter like marriage. But the Bench was dissatisfied with him and held that “This argument gives the impression that he does not want the correct and independent view of the dispute which has emerged before this court.” Court made it cleared that the investigation will be fair and would be done in the presence of retired Supreme Court Judge, Justice R.V. Raveendran.
- Mr. Kapil Sibbal stressed upon individual’s right to autonomy, he argued that Hadiya has absolute right to make her own choices and decisions, whether her choice of religion or marriage.
- He further argued that Hadiya has right to marry a person of her choice and Court not have any power to withdraw this right from her and also Court cannot decide on her behalf, The Parens Patriae jurisdiction of court cannot be activated unless the person in minor.
- He further argued that Habeas Corpus is used for wrongful confinement and not for nullifying a marriage .
- Petitioner also contented that Hadiya has made decisions without any undue influence and her choice should be respected. It was further argued that the restrictions imposed on the choice of her spouse is violation of her fundamental rights which includes right to life, liberty and right to equality.
- Petitioner also argued that interference of Hadiya’s parents, state authorities to her personal life which includes her religious beliefs , marital choices tends to amount of violation of her right to privacy.
- The Counsel for Respondent No.1 has tried to make the present case as a matter of jihad and relate it with communalism which is not the case and such step is taken to distract the law and order of society.
ARGUMENTS FROM RESPONDENT SIDE:
- Additional Solicitor General Maninder Singh opposed the prayer by Mr. Dushyant Dave to remove Hadiya out of her parental custody.
- He argued that due to persuasion, Hadiya’s consent cannot be said to free. He pointed out to add persuasion to the list of exception. He brought attention of the court towards NIA report which shows 89 cases of persuasion in Kerala alone.
- Mr. Shyama Divan Senior Counsel appearing for Hadiya’s father stressed upon the organizational apparatus , the PFI(popular front of India), who radicalizes youth and vulnerable adults , so it is not only minor but also vulnerable adults who seeks or needed protection.
- Mr Divan also urged to court for camera proceedings due to following reasons: first, the task of probing into this could be best achieved in camera; second, an open hearing would contribute to this becoming a very communally charged issue; and third, he suspected that playing of the inciting videos and recorded transcripts by the members of the Popular Front of India could lead to violence.
- Maninder Singh also argued that meeting of Hadiya to Shafin at matrimonial site was false according to NIA report.
- Mr. Shyam Divan argued that High Court is exercising plenary extraordinary jurisdiction under Article 226 where it could be complete justice as per facts mentioned in the case. This marriage is becoming an interference with the fair administration of justice.
- Article 226 of the Constitution of India: Power of High Courts to issue certain writs:
Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto, and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
- Article 32 of the Constitution of India: Remedies for enforcement of rights conferred by this Part:
The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
- Article 19 of the Constitution of India: Protection of certain rights regarding freedom of speech, etc:
All citizens shall have the right
- to freedom of speech and expression;
- to assemble peaceably and without arms;
- to form associations or unions;
- to move freely throughout the territory of India;
- to reside and settle in any part of the territory of India; and
- to practice any profession, or to carry on any occupation, trade or business.
- Article 21 of the Constitution of India:
Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.
Special Marriage Act: Conditions relating to solemnization of special marriages.―Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:―
(a) neither party has a spouse living;
[(b) neither party―
(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(iii) has been subject to recurrent attacks of insanity 4* * *;]
(c) the male has completed the age of twenty-one years and the female the age of eighteen years;
[(d) the parties are not within the degrees of prohibited relationship:
Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship; and] 6[(e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends].
7[Explanation.―In this section, “custom”, in relation to a person belonging to any tribe, community, group or family, means any rule which the State Government may, by notification in the Official Gazette, specify in this behalf as applicable to members of that tribe, community, group or family:
Provided that no such notification shall be issued in relation to the members of any tribe, community, group or family, unless the State Government is satisfied—
(i) that such rule has been continuously and uniformly observed for a long time among those members;
(ii) that such rule is certain and not unreasonable or opposed to public policy; and
iii) that such rule, if applicable only to a family, has not been discontinued by the family.]
On April 9th, 2018, the Supreme Court delivered its judgement in two separate, simultaneous opinions. The Court set aside the Kerala High Court judgement that nullified Hadiya’s marriage to Shafin. On May 24, 2017, Justices Surendra Mohan Kuriakose and Abraham Mathew of the Kerala High Court nullified Hadiya’s marriage to Shafin Jahan. The High Court held that though a girl is weak and can be exploited in many ways, her marriage is nullified, and the Court gave custody of her to her parents. Later, Shafin filed a Special Leave Petition in response to the judgement. ril 9th, 2018, the Supreme Court delivered its judgement in two separate, simultaneous opinions. The Court set aside the Kerala High Court judgement that nullified Hadiya’s marriage to Shafin. On May 24, 2017, Justices Surendra Mohan Kuriakose and Abraham Mathew of the Kerala High Court nullified Hadiya’s marriage to Shafin Jahan. The High Court held that though a girl is weak and can be exploited in many ways, her marriage is nullified, and the Court gave custody of her to her parents. Later, Shafin filed a Special Leave Petition in response to the judgement.
On March 8th, 2018, the Bench comprising Chief Justice Dipak Mishra, Justice A.M. Khanwilkar, and D.Y. Chandrachud nullified the marriage. In this case, the High Court misused Habeas Corpus, which is a remedy against illegal confinement that affects individual liberty and freedom. When Hadiya appeared before the court, she stated that she was not under illegal confinement. SC said that the High Court cannot decide an individual’s correct way of life or the correct person to whom one should get married. She has absolute autonomy over her body and whoever she wants to marry or live with.
The court also made reference to the judicial precedent:
- In Suresh Kumar Kaushal vs. Naz Foundation:
Here, the court held that Section 377 is not violative of Articles 14, 15, and 21 of the Constitution of India and held that carnal intercourse, which means unnatural lust, ought to be punished. Here, the Court recognised the rights of same sex.
- In Shakti Vahini v. Union Of India:
The Honourable Court held that honour killing is a crime and that making a person marry someone other than his own choice is a violation of Article 21.
- In Lata Singh v. State Of Uttar Pradesh:
Court held that right to marry a person of one’s choice based totally on individual and parents cannot force an individual against marriage.
- In Vikas Yadav vs State of Uttar Pradesh:
Court held that women and her choice is individual choice and her individual choice is her self respect, one cannot impose parental choice to individual choice as it is violation of her right.
- In Asha Ranja vs State of Bihar:
In this case court held that women choice of choosing her husband is a fundamental right under Article 19n Of Constitution of India.
- In K.S. Puttaswamy vs Union Of India.
Here court held that autonomy is an intrinsic value in individual’s life to make decisions on important matter of one’s life. Personal autonomy is an integral part of human dignity, which includes one’s mental integrity and privacy which ensures freedom of thought , sexual orientation.
With above references High court further guided by social considerations was held by SC. SC expressly said that HC was actually didn’t dealt deep into the legal provisions, it rather dealt upon social considerations. Anticipation of any future activity must not be govern or does not hold any view in the eyes of law.
High Court here invoke the doctrine of Parens Patriae to take out Hadiya from custody of Shafin Jahan because was apprehended to be an abusive husband, a terrorists so she is given into custody of her father. So state act as parent here. SC cleared that this doctrine can only invoke in an exceptional cases where individual is mentally unsound, underage, or no legal parent or legal guardian, or has abusive one. Here Miss Hadiya neither mentally unsound nor she is underage. She has right to choose her partner as right to choice is mentioned under article 19 of constitution of India.
SC held that High Court over exercised its power on constitutional rights, where HC gave importance to social consideration over constitutional rights. Ms. Hadiya and Mr. Jahan are adults and marital status is conferred through law. HC override the right to choose over parental love. The right to marry a person of one’s choice is an integral part of article 21, it is an exclusive domain of individual’s privacy.
This judgement recognises the right to marry as a fundamental right under Article 21 of the Constitution Of India.
The present case is very well against patriarchy and orthodox mentality, which have restrained the women for several years with the perspective that they are bound to their father, husband, and brother. Whatever is decided for them is only right for their father or husband. But this case is a bang on all these kinds of thinking, which recognised women’s personal autonomy, her love, her marital rights, and her privacy. This case recognised the contradictions faced by society generally due to inter-caste and inter-religious marriages. It simply defines that rights have more weight than social tradition. This case opened the way to several other cases, as this case recognised the right to marry as a fundamental right. Recently, Section 377 was decriminalised with the greater contribution of this case. This case explains an individual’s personal freedom, religious conversions, and interfaith marriage.
The case was recognised as a love-jihad case, which has no proof in court as it was cleared that both people got married of their own volition and there was no undue influence. Social morality exists in society, but it is not above constitutionally guaranteed rights and liberties. The patriarchal approach of the court could be justified by the use of the doctrine of parens patriae, which is generally unacceptable in the modern era. That’s why the right to choice is recognised by the court. The right to privacy includes the right to self-determination and the right to personal autonomy; hence, the court is justified in recognising the right to choose a partner and marry whomever a person wants.
 B.A.LL.B. 4th SEMESTER AT VASUDEV COLLEGE OF LAW, LAMACHAUR , HALDWANI , UTTARAKHAND.
 Hadiya Marriage Case : Shafin Jahan vs Ashokan K.M. https://www.legalserviceindia.com/legal/article-9531-hadiya-marriage-case-shafin-jahan-v-s-asokan-k-m.html (last visited June 20, 2023).
 The Hindu Marriage Act 1955, Section 5.
 Case Brief: Shafin Jahan vs Ashokan K.M. and Ors.(Hadiya Marriage Case), https://lawbhoomi.com/case-brief-shafin-jahan-vs-ashokan-k-m-ors-hadiya-marriage-case/ (last visited June 20, 2023).
 Hadiya Marriage Case, https://www.scobserver.in/cases/shafin-jahan-union-of-india-hadiya-marriage-case-background/ (last visited June 20, 2023).
 The Constitution Of India, Article 226.
 The Constitution Of India, Article 32.
 The Constitution Of India, Article 19.
 The Constitution Of India, Article 21.
 The Special Marriage Act, 1954. Section 4, 5,6.