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The article has been written by Kartik Bohra, from Symbiosis Law School, Hyderabad. In this article, the author discusses the legal reasoning and implications of the case Shafin Jahan v. K.M. Ashokan. The article lies in the concept of freedom of choice and religion granted by the Constitution of India.

“It is not just her freedom to choose religion, her physical freedom has also been restricted. She is effectively a prisoner at her father’s house right now”

Introduction

The case of Shafin Jahan v. K. M. Ashokan is also known as Hadiya’s case revolves around intercaste marriage and a woman’s right to marry. The case guides and directs the freedom and liberty of an individual. This case was titled by the media as the “Love Jihad case.” The rights of women to marry against the wishes of their parents were being questioned in the case. There were some arguments and allegations presented by the father of Hadiya that made the case more complex as he alleged that Shafin Jahan influenced to change her faith and further he raised concern that she was being taken to be out of India.

K.M Ashokan filed the case before a divisional bench of Kerala High Court challenging the validity of the marriage and her daughter’s conversion to Islam through the writ of Habeas Corpus. The High Court rejected the petition. Following this, another writ petition was filed and the High Court passed the judgment in the favour of the petitioner. The matter went to the Supreme Court, and the Apex court annulled the judgment of the Kerala High Court on 09.04.2018. 

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Background facts

Hadiya Jahan, who was originally known as Akhila Ashokan was a Hindu by birth. She converted her religion into Islam when she was studying for Homeopathy (BHMS) form Shivraj Homeopathic Medical College, Salem in Coimbatore, Tamil Nadu. She stayed in a house with her friends named as Jaseena and Faseena. She then married a Muslim man named Shafin Jahan at the age of twenty-five years. On 6th January 2016, Mr Ashokan, father of Hadiya, found that her daughter was inspired by someone to change her religion from Hindu to Muslim. After finding out about the marriage of her daughter, Mr Ashokan filed a police complaint before S.P. Malappuram District. He then moved to High court and filed a habeas corpus petition challenging the validity of the marriage on the ground of misleading and forcing his daughter to become a Muslim. 

The divisional bench of the High Court rejected the petition and stated that Hadiya has expressly affirmed her marriage to Sahfin Jahan and conversion to Islam. Hadiya appeared before the High Court and stated that she had accepted Islam as a religion of choice and settled at the establishment of Sathyasarani Education Charitable Trust at Mallapuram. So, the High Court observed that Hadiya was not wrongfully confined by  Sahfin Jahan, and she has free will to do so. The Kerala High Court held that the marriage between Hadiya and Sahfin Jahan is only a sham and is of no consequence.” After seven months, Ashokan filed another writ (habeas corpus) petition before the High court alleging that his daughter had been forcefully converted into Islam and was likely to be transported out of the country. The High Court ruled in favour of Mr Ashokan and held that it is the father’s responsibility to keep custody of his daughter until she may realize her actions. The court exercised the parens patriae jurisdiction and mentioned that it is for the welfare of the child of such an age. The court also stated that a girl aged 24 years may be exploited easily as they are weak and vulnerable. Therefore, the court declared the marriage as null and void and allowed the custody of Hadiya to her parents, despite the fact that Hadiya did not consent to it.

Main issues

  1. Whether the High Court has the power under Article 226 of the Constitution of India to annul and void the marriage of an adult?
  2. Whether the petitioner had a right cause to file a writ petition of Habeas Corpus before the High Court?
  3. Whether a National Investigating Agency probe ordered by the Kerala High Court was necessary?
  4. Whether women or men have to take prior approval from their parents if they are above the age of eighteen and twenty-one respectively? 

Arguments

The High Court has a power granted by the Constitution of India under Article 226, for enforcing the rights guaranteed under Part-III of the Indian Constitution and for any other reason as the case may be. He has argued that the High Court has immense power to annul the marriage if the court is stratified that the solemnization of marriage takes place under unreasonable and suspicious circumstances. The commentary of D.D. Basu on Halsbury’s Laws of England stated about the power of High Court to grant the writ of Habeas Corpus that “The writ of Habeas Corpus Ad Subjiciendum” unlike any other writs, is a prerogative writ and used in extraordinary remedies where the legal ordinary remedies are inadequate. The writ of Habeas Corpus can only be granted under reasonable circumstances and issues of the case.. In the present case of Shafin Jahan v. K. M. Ashokan, the initial petition was rejected by the Kerala High Court on the grounds that her daughter Hadiya affirmed the marriage and her conversion to Islam was done willingly without any form of coercion. In the case of Ummu Sabeena v. State of Kerala and Others, it was held that the principle of Habeas Corpus was formulated to protect the liberty of an individual and provide immense powers to the courts to exercise it in the most effective manner and to ensure justice. 

Following this, Mr K.M. Ashokan filed another Habeas Corpus writ petition before Kerala High Court to prevent her daughter Hadiya and Shafin Jahan from leaving India and to seek custody of her daughter. The case was filed allegedly on the basis of ‘love jihad’. He filed the petition to prevent her daughter from illegal conversion and leave the country as the ‘locus standi’ of being her father. The High court accepted the arguments of her father and held that the girl of 24 years is weak and capable of being exploited by other people. They are vulnerable and active involvement of parents is needed for taking important decisions in her life. The court further applied the principle of the Parens Patriae jurisdiction and observed that it was concerned with the life and welfare of Hadiya at this age and granted the custody of Hadiya to her parents for the welfare and beneficial purposes. The Kerala High Court also stated that solemnization marriage is considered as the most important decision of life and active involvement of parents should be taken to solemnize it. The marriage between Hadiya and Shafin Jahan is a sham and is of no consequence in the eyes of law. The High Court annulled and void the marriage and gave the custody of Hadiya to her parents for her welfare. It is a well-established principle that courts can exercise Parens Patriae jurisdiction but the power has a certain limitation as this doctrine limits the decision-making autonomy of living parents vis-à-vis their children which has to be kept in mind and courts cannot in each and every case invoke this doctrine.

Aggrieved by the order of Kerala High Court, Shafin Jahan challenged the decision of the High Court in the Supreme Court. The Supreme Court in its interim order by Justice D.Y. Chandrachud stated that the decision taken by the High Court in the matter of marriage of Hadiya was not justified in the eyes of the law and observed that the actions of the High Court bench have utilized its inherent powers in excess of its judicial powers. The court further observed that the jurisdiction of the High Court to annul the marriage in the writ petition of Habeas Corpus over the case ends when someone, for who the writ of Habeas Corpus was filed, stands before the court of law with the willingness to do as they please it gives the indication about their free will which is also protected under the constitution of India. Thus, it is the duty of the High Court to protect those fundamental rights conferred under the Constitution of India. Therefore, the action of the High Court to annul the marriage between Hadiya and Shafin Jahan was against the provisions of the constitution of India and out of its jurisdiction.

The issue framed by the Supreme Court raised concerns over the necessity for a Central level investigation in the case. In 2017, the Apex Court directed the officials to probe the case by the National Investigation Agency to know whether this case involves a bigger conspiracy or an isolated one. The Apex took the reference of the case of Bharati Tamang v. Union of India, which defines the principles to promote and ensure effective conduct of prosecution by the court of law. The courts are given a wide range of powers to prevent the miscarriage of justice and thus, courts can order to probe the case through the National Investigation Agency if is necessary to do so. Therefore, it was observed by the Apex Court that High Courts have powers to grant an order for investigation where a case is complex and involves a suspicious chain of events. 

The debate on the issue of ‘love jihad’ is politically and socially motivated with malicious motives. The Indian Laws, in fact, promotes the concept of inter-caste marriages or ‘“Love Jihad.” The Special Marriage Act, 1954 was formulated to govern the inter-caste marriages in India. Thus, it is very strange that the Kerala High Court was convinced in the first place on the statement given by the girl and boy. Further, the view of the Kerala High Court that “marriage is a significant decision and must be taken along with the parents” was held to be vague and erroneous by the Apex Court. This is not the case of undue influence on the girl and hence, the High Court decision to annul the marriage and give custody to her parents was erred and against the basic provisions of the Constitution of India. 

Therefore, the Supreme Court passed the ruling in the favour of Shafin Jahan and held that the marriage was a valid one and she does not need any consent from her parents as she attained the age of majority. 

Judgment

The Apex court, in this case, set aside the judgment ruled by the Kerala High Court declaring it null and void the marriage of Hadiya and Shafin Jahan. The marriage was restored by the Supreme court, and the court held that the investigation led by NIA to probe the marriage and any other criminality shall continue but there should be no interference between the marriage. A 3-Judge Bench comprising the Chief Justice Deepak Misra, Justice A.M. Khanwilkar and Justice DY Chandrachud delivered the judgment and removed Hadiya from the custody of her parents as it was against her will. The court also sent her back to the college after she had expressed her willingness to continue her studies. 

Legal implications of the judgment

The judgment given by the Supreme Court was apt according to the present situation in society. The marriage between Shafin Jahan and Hadiya was valid as the court did not find any ulterior motive behind the marriage. The allegations made by the father of Hadiya were erroneous and had no relevance with the marriage. The constitution of India provides liberty and freedom of choice to every individual. In the case of Lata Singh v. State of Uttar Pradesh, it was observed by the Supreme Court that the right to marry is a component of Right to life enshrined under Article 21 of the Indian Constitution. The court further held that India is a free and democratic country and a person is free to marry whosoever he/she likes after attaining the age of majority that is 21 for boys and 18 for girls. Parents of the boy or girl do not have any right to harass or instigate acts of violence against them. Therefore, we can say that a person can marry whomsoever he/she likes irrespectively of the caste and it is the fundamental right to marry guaranteed under the constitution of India.

Thus, it is rightly said that social values, faith and morals have their space in society but they are considered above the Fundamental rights enshrined under the Indian Constitution. The said freedom is constitutional and a human right. In the case of Bhagwan Das v. State (NCT of Delhi), the court averted the social evil in society such as Honour killings and love jihad and stated that these practices are a reflection of a feudal mindset which is a blot on the nation. The duty of the court is to protect the individual’s fundamental rights and not to shorten the rights except under certain circumstances. The courts must abide by the laws and regulation and determine the case on the basis of legality and not morality. Everyone has a freedom of choice of religion and faith which is expressly enshrined under the Indian Constitution. 

Conclusion

Terming the case of Shafin Jahan v. K.M. Ashokan as the appropriate example of “patriarchal autocracy and possibly self-obsession with the feeling that a female is a chattel”. The judgment of the Kerala High Court reflects the patriarchal system in the society which is a slur on the nation. The judgment showed that women are vulnerable in society. Thus, the Supreme Court rightly quashed the order of the High Court and passed the judgment in the favour of Hadiya where she has freedom of choice of religion and faith. Moreover, the conversion was valid, and the validity of the marriage cannot be decided by the court of law if parties have attained the age of majority. 

Every person has the right to marry and enter into a legal contract if he/she attains the age of majority without any interference from parents. The right to marry is not expressly mentioned under the Indian Constitution but it is interpreted under Article 21 which provides for the right to life and personal liberty. Thus, the marriage between Hadiya and Shafin Jahan was valid and the High Court decision to annul it was bad in the eyes of the law. 

References


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