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This article is written by Sanjana Jain, Student, Guru Gobind Singh Indraprastha University, Delhi. This article talks about the facts, issue and decision of the case Shafin Jahan v. K.M. Ashokan.

Introduction

This case was also known as the Hadiya case. In this case, the appellant has filed a criminal appeal against the order of Kerala High Court. The appeal was allowed by the Supreme Court of India and the appeal was ordered in favour of the petitioner. In this case, the court has protected a girl’s right to marry a man of her own choice and choose her religion.

Facts of the Case

The following are the brief facts of this case:

  • In this case, there was a girl who was from  Kottayam Kerala, her name was Akhila, she lives with her parents and has completed her school. She converted into Islamic faith while doing her bachelors course in Homeopathy, she also enrolled herself in a study centre and started learning Islam.
  • Later, she started practising Islam as her faith and started wearing a scarf, as she was too much influenced by her two friends who were Muslims. When she denied following the tradition of her parents, her parents came to know about this, and they noticed the changes in her.
  • Akhila changed her name to Hadiya, and in 2016, she left her house on her own will. Thereafter, her father filed a missing complaint in order to trace her, in pursuance of this her father filled in the Kerala High Court a writ of Habeas corpus.
  • That meanwhile Akhila aka Hadiya married a person who is Muslim named Shafin Jehan according to Islamic traditions. Shafin Jehan the petitioner was found to be associated with an organization that is closely related to a terrorist organization.
  • It was alleged by the family of Hadiya that she was brainwashed by Shafin Jehan and his family and that she is the victim of love for Jehad and also she was forced to marry without her will. They also alleged that there was a conspiracy and their daughter was misguided by her friends.
  • That the father of Hadiya filed this petition stating that she might get out of the country and may get involved in some illegal activities. The Kerala High court issued an order restraining Hadiya from going out of India and to keep her in a women’s hostel in Kochi.
  • The court found that the person who arranged the marriage of Akhila caused other conversions as well, and he had connections with extremist organizations.
  • The court also found that Shafin Jahan (the petitioner) was also accused in some criminal matters and he also had some linkage with ISIS groups.
  • Hence, the High Court of Kerala annulled the marriage of Hadiya and Shafin Jahan, by exercising its powers under Article 226 of the constitution and ordered for the stay of Hadiya with her parents. The petitioner filed the petition in this apex court against the above decision of the High Court.
  • The National Investigation Agency was ordered by the High Court for the investigation of the background of the petitioner and any other activities of him which generates doubt about him.

Issues raised

  1. Can a High court by exercising its power under Article 226 of the Constitution annul the marriage of an adult?

Article 25 of Constitution of India

According to the Constitution of India, every citizen has the right to profess the religion of his or her choice, but forceful conversions are not allowed by our Indian constitution. According to Article 25 and many judicial decisions, forceful conversions are completely prohibited in India.  The Government kept forward the “Anti-conversion bill” three times in front of the Lok Sabha after the Independence but it could not be approved due to reasons. Some of the states got the bill enacted, in Rajasthan, Gujrat, Jharkhand, Tamil Nadu, Himachal Pradesh, and Arunachal Pradesh, the anti-conversion laws have been adopted. The bill does not violate the right of equality, freedom of speech, and the right of choice, it aims to prevent forceful conversions. There are several cases, where some famous personalities like actors and singers changed to other religions, they converted as per their own will and choice and we appreciate their choice and decisions, but no one can force anyone to convert.

Law versus Religion

According to Article 18 of the Universal Declaration of Human Rights (UDHR), every individual has the right to freedom of religion, conscience, and thought, and this right includes the freedom to change his religion or belief. In the case of Hadiya, this particular idea was established by the Supreme Court. The major contention, in this case, was whether state agencies can restrict the right of the individual to prefer his/ her own religion. The Supreme Court does not agree with the manner the Kerala High court has treated this matter. In this case, a writ of Habeas Corpus was turned into a declaration that Hadiya’s marriage with her Muslim husband was void.

In this case, the Supreme Court has decisively mentioned that everyone has the right to choose his religion and the State has no right to interfere in it, so the prohibition, in this case, is totally out of the subject.

No religion teaches to bring another religion down

In  Lily Thomas v. Union of India, the Supreme Court held that the constitution provides every person with a fundamental right to have such religious beliefs as he/she chooses, and the authority to decide his/her religious beliefs shall not contravene the personal liberty, freedom, and religious rights of others. The law should not be put in such a way that it will affect free speech and free expression of one person was also upheld in case S Khushboo v. Kanniammal.

In the case of Navtej Singh Johar v. Union of India, the constitution division bench, partly strikes behind Section 377 of IPC, by stating that “ it’s not only unclear but it also has an alarming effect on individuals freedom of choice”.

Article 25 of the Constitution provides everyone with a right to exercise freedom of any religion of his power to choose. Freedom to choose religion includes within itself freedom from religion also, thus, every individual has the freedom to have faith in the religious values of any particular religion. People with different religious belief can make group among themselves, within a religious denomination, an adverse definition has been given by the  Hindu Marriage Act, 1955 to the term Hindu by stating that any person who is not Christian, Muslim, Parsi, etc. to be considered as Hindu.

In the case of Ratilal Panachand Gandhi V. State of Bombay, the Court held that every citizen of India is provided with a fundamental right to choose such religious beliefs as a person to choose may be trusted by his judgment or freedom of conscience and religion.

Therefore, the constitution of India assures freedom of religion and acknowledges the independence of its citizens to have a belief system or freedom of religion of their own choice, and its restraint state or law from interfering with an individual’s freedom. Right to protection of Life and Personal Liberty according to  Article 21  of the Constitution of India is important where the country can be inclined successfully in the direction of the specified aim of formation of a culture based on the belief that each and every individual is equal in the country and deserves the same constitutional rights and privileges. The Supreme Court by granting and defining the scope of this right has converted this right into an element of the right to personal liberty as recognized by the judiciary.

In the case of Unni Krishnan v. State, it was first recognized that Article 21 of the constitution of India is a core of Fundamental rights and it has extended the scope of Article 21 by stating that the right to life includes the right of a  person to live with human dignity and personal liberty includes right to choose.

Hadiya is under illegal detention

In this case,  Hadiya is illegally restrained from her freedom granted under Article 21 of the constitution of India. The court opined that the objective of the writ of Habeas Corpus is to provide release of a person who has illegally confined one’s liberty while dealing with this writ; it is the responsibility of the court to check that the person is free from all unlawful restraints. In this case, it is significant to note that Hadiya was a major and on her own will she has married Shafin,  so the deprivation of marriage of Hadiya is a  complete violation of the right of a person to choose his/her life partner and right to privacy granted under Article 21 of the Constitution of India. No State or any law has the power to restrain the freedom of any individual to choose his/her, life partner.

The court relying on the judgment of Justice KS Puttaswamy v. Union of India held that the power to take decisions on incidents close to one’s life is an inviolable aspect of the individual’s personality. The intersection between one’s mental integrity and privacy grants the person freedom of self-determination, the freedom to believe in what is right and what is wrong, and the freedom of thought.

In the case of  Lata Singh v. State of UP, the Supreme Court provided support to women’s right to choose, when the petitioner, Lata Singh left her home to get married to a  man outside of her religion.

In another case of Gian Devi V. Superintendent Nari Niketan, the court held that there is no lawful ground for the detention of the petitioner in Nari Niketan against her will. Subsequently, the petitioner stated that her detention was not in accordance with the law and she does not want to stay in Nari Niketan. The court directed that petitioner to be set at freedom.

Thus, in this case, Hadiya was allowed to have her right of freedom to choose religion, the law must not take up the part of a Parens Patriae by the unwillingness of father or mother.

Order

The Supreme Court by setting aside the judgment of the High Court of Kerala of annulling the marriage between Shafin Jahan and Hadiya allowed the appeal by pronouncing order on 8th March 2018. The Supreme Court stated that the Kerala High Court has crossed all its limit by annulling the marriage of the Hadiya while hearing the petition of habeas corpus, which can also be called a miscarriage of Justice. The court expressed its views by stating that the strength of the  Indian Constitution lies in the acceptance of plurality and diversity of the Indian culture. Choosing a religion of his/her choice is completely on the will of a person and marrying a person of his/her own choice cannot be objected to and decided by the society itself because it’s a part of one’s freedom which is protected by the constitution of India. Also, the court allowed the NIA investigation in criminal matters of Shafin Jahan (the petitioner) without accepting the plea of the petitioner to review such order.

                    

NIA Investigation

According to the NIA investigation, the petitioner i.e Shafin Jahan is accused of having linkage with two ISIS members i.e Manseed and P Safvan, which were included in the Omar-al-Hindi case, through a  popular Facebook group named  Popular Front of India (PFI) which deals with activities of SDPI. Hadiya and Shafin Jahan were bought together by Muneer (Shafin Jahan’s friend).

The investigation has also found certain differences in the information received, that the couple earlier has claimed about the meeting on the matrimonial site. The court is now hearing the appeal of Shafin Jahan against the annulment. According to records, Shafin Jahan on 19 September 2015 had registered his name on the website, while Hadiya registered her name on 17th April 2016. Between 17 April to 23 April Hadiya viewed around 49 profiles, but not of Shafin, in the same way, Shafin viewed 67 profiles, but not of Hadiya’s. According to  NIA’s report in August 2016, Muneer has bought the marriage proposal of Shafin Jahan in this case of love jihad.

Conclusion

Regarding the topic of freedom of choice this case has marked its presence on the pages of history, and can not be forgotten for a long time and can be employed in many judgments of the court because it has shown the immense strength of the Constitution that shows acceptance of plurality and variety of Indian culture. It has been clearly observed in this judgment that marriage, plurality, and individual choices should be guarded against State’s intervention. 

References

 


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