Shafin Jahan vs Asokan K.M.

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”.

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:

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.

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.

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:

20 Article 16 of the Universal Declaration of Human Rights underscores the fundamental importance of marriage as an incident of human liberty:

...…............................................J [Dr D Y CHANDRACHUD] New Delhi;

April 09, 2018.