A. K. SIKRI, J.

Leave granted.

The brief facts leading to the present appeal are that appellant No. 1 has married Ms.Thushara. According to the appellant, this marriage was solemnised on 12.04.2017 at the Chakkulathukavu Bagavathi Temple situated in the Trivandrum District, Kerala. Insofar as Thushara is concerned, as on the date of marriage, she was admittedly 19 years of age and was, therefore, competent to enter into wedlock. It appears that after that marriage, she started living with appellant No. 1 as his wife.

Respondent No. 4 is the father of Thushara. He filed Habeas Corpus petition being W.P.(Crl.) No. 149/2017(S) in the High Court of Kerala alleging therein that ever since Signature Not Verified Digitally signed by NIDHI AHUJA 10.04.2017, his daughter Thushara was missing. He also Date: 2018.05.03 17:01:05 IST Reason: stated in the said petition that Thushara was in the illegal 1 CRIMINAL APPEAL NO. 597 OF 2018 custody of appellant No. 1. In fact, respondent No. 4 had lodged FIR regarding missing of his daughter on 10.04.2017. Stating this fact in the writ petition, he averred that though the said FIR was registered, but no effective investigation had been conducted in the matter. On that basis, prayer made in the petition was to issue writ of Habeas Corpus commanding the appellants to produce his daughter in the High Court. This writ petition was admitted on 25.04.2017 and notice was ordered to the appellants herein by special messenger. On that day, the High Court also directed respondent Nos. 1 to 3 to trace out and produce the respondent No. 4’s daughter in the Court. On 28.04.2017, when the writ petition was taken up, respondent No. 4 and his wife were present. Appellants were also present. The Sub Inspector of Police, Vatgtiyoorkavu Police Station produced the detenue in the Court. The High Court interacted with the parties, including Thushara.

As pointed out above, insofar as Thushara is concerned, she was 19 years of age and, therefore, competent to marry, as the marriageable age for females is 18 years. However, dispute arose about the age of appellant No. 1 herein. It was the contention of respondent No. 4 that appellant No. 1 was less than 21 years of age and, therefore, he was not of marriageable age. To ascertain this fact, the High Court asked appellant No. 1 to inform his date of birth. He stated his date of birth to be 2 CRIMINAL APPEAL NO. 597 OF 2018 30.05.1997, and in support thereof, produced driving licence issued by the licensing authorities. Treating it to be the date of birth of appellant No. 1, the High Court found that he would be attaining the age of 21 years only on 30.05.2018. Therefore, on 12.04.2017, when the marriage was solemnised between appellant No. 1 and Thushara, appellant No. 1 was not of marriageable age. On that basis, the High Court concluded that the daughter of respondent No. 4 is not the lawfully wedded wife of appellant No. 1. The High Court also remarked that apart from the photographs of marriage which were produced in the High Court, there was no evidence to show that a valid marriage was solemnised between the parties and that a certificate issued by the local authority under the Kerala Registration of Marriages (Common) Rules, 2008, was also not produced. On these facts, the High Court allowed the writ petition by entrusting the custody of Thushara to her father i.e., respondent No. 4 herein, as is clear from the following directions contained in the impugned order:

In a recent judgment rendered by this Court in the case of ‘Shafin Jahan v. Asokan K.M. & Ors.’ [2018 SCC Online SC 343], after stating the law pertaining to writ of Habeas Corpus, this writ has been considered as “a great constitutional privilege” or “the first security of civil liberty”. The Court made the following pertinent observations: -

Initially, Hadiya had declined to go with her father and expressed her desire to stay with the respondent No. 7 before the High Court and in the first writ it had so directed. The adamantine attitude of the father, possibly impelled by obsessive parental love, compelled him to knock at the doors of the High Court in another Habeas Corpus petition whereupon the High Court directed the production of Hadiya who appeared on the given date along with the appellant herein whom the High Court calls a stranger. But Hadiya would insist that she had entered into marriage with him. True it is, she had gone with the respondent No. 7 before the High Court but that does not mean and can never mean that she, as a major, could not enter into a marital relationship. But, the High Court unwarrantably took exception to the same forgetting that parental love or concern cannot be allowed to fluster the right of choice of an adult in choosing a man to whom she gets married. And, that is where the error has crept in. The High Court should have, after an interaction as regards her choice, directed that she was free to go where she wished to.” The Court also emphasised due importance to the right of choice of an adult person which the Constitution accords to an adult person as under:

Sans lawful sanction, the centripodal value of liberty should allow an individual to write his/her script. The individual signature is the insignia of the concept.

We also reproduce the following discussion from the concurring judgment rendered by Dr. Justice D.Y. Chandrachud in the said case:

Accordingly, we allow this appeal and set aside the impugned judgment of the High Court. However, since Thushara has not appeared as she was not made party in these proceedings, while setting aside the directions of the High Court entrusting the custody of Thushara to respondent No. 4, we make it clear that the freedom of choice would be of Thushara as to with whom she wants to live.

…………………………………………………………., J.

[ A.K. SIKRI ] …………………………………………………………., J.

[ ASHOK BHUSHAN ] New Delhi;

April 20, 2018.