Case No: 03 Summary.

Hadiya Marriage Case

Shafin Jahan v. Ashok K.M. & Others, AIR 2018 SC 357

On 9th April 2018, the Supreme Court delivered its judgment in two separate
concurring opinions. It reversed the Kerala High Court's judgment, where it annulled
Hadiya's marriage to Shafin Jahan. In this case, on 24th May 2017, Justices Surendra Mohan
Kuriakose and Abraham Mathew of the Kerala High Court annulled Hadiya’s marriage to Mr
Shafin Jahan. The Kerala High Court judgement stated that ‘a girl aged 24 years is weak and
vulnerable, capable of being exploited in many ways’. The High Court gave Hadiya's parents
custody of her. In response, Mr Shafin Jahan filed a special leave petition, challenging the
judgement.

On 8th March 2018, the Supreme Court set aside the annulment of the marriage. The
Bench comprised Chief Justice Dipak Misra, and Justices A. M. Khanwilkar and D. Y.
Chandrachud. On 9th April 2018, it passed the judgement explaining the reasoning behind its
decision. In its judgement, the Supreme Court makes no mention of its order to the National
Investigation Agency (NIA). The Court had ordered the NIA to investigate Hadiya's marriage
and conversion to Islam. The High Court wrongly exercised its Habeas Corpus jurisdiction

The writ of habeas corpus is ‘a great constitutional privilege’ or ‘the first security of
civil liberty’. It is a remedy against illegal detention, which affects the liberty and freedom of
the detainee. Its purpose is to see that no one is under illegal confinement, deprived of liberty
without the sanction of the law. In this case, the High Court misused the habeas corpus.
When Hadiya appeared before the High Court, she stated that she was not under illegal
confinement. The High Court has no power to decide the ‘just’ way of life or ‘correct’ course
of living for Hadiya. She has absolute autonomy over her person.

Moreover, in Hadiya’s case, the High Court was guided by social considerations. It
was wrong and unnecessary to go into aspects of social radicalization in a writ of habeas
corpus. It is the job of the law enforcement agencies to look into aspects of criminality. The
Court should only look at whether the person has been detained without lawful authority.
Further, the argument that Mr Jahan would take Ms Hadiya out of the country was also
unnecessary to examine for a habeas corpus case. Apprehensions of any future activity must
be governed and controlled by the State.

The High Court wrongly invoked the parens patriae jurisdiction

Parens patriae is the power of the State to intervene against an abusive or negligent
parent or guardian. The State acts as the parent of such an individual. The courts can invoke
this role only in exceptional cases where the individual is either mentally incompetent, or
underage, or has either no parent/legal guardian or has an abusive one. Ms Hadiya is neither
mentally incapacitated nor vulnerable. She equivocally expressed her choice, and the right to
choose is a constitutionally guaranteed freedom and a facet of individual identity. It could not
take precedence over social and moral values. A Constitutional Court must protect
fundamental rights and thus could not reject Hadiya’s choice.

The High Court transgressed on constitutional rights

Ms Hadiya and Mr Shafin Jahan are adults, who decided to marry each other. Marital
status is conferred through legislation or custom. The High Court was wrong in letting
parental love and concern override the right of an adult to choose who she wishes to marry.
Moreover, the Constitution guarantees that the ability to take such decisions is a part of
liberty and individual autonomy. The right to marry a person of one’s choice is integral to
Article 21. Choice of a partner lies within the exclusive domain of an individual, and is a part
of the core zone of privacy, which is inviolable. Thus, the High Court was wrong in using its
powers under Article 226 to annul Hadiya’s marriage with Shafin Jahan