Constitutional Law FYLLB SEM II

Analysis on the Constitutional Case Laws

SUBMITTED BY
Pratik Tukaram Godage

DIV -A; ROLL NO – 22

SUBMITTED TO
Prof. Ms Amrita Sanyal.
Table of Contents
1. Shafin Jahan v. K.M. Asokan...............................................................3
Facts of the Case.....................................................................................................3
Summary of Court Judgement................................................................................4
Analysis..................................................................................................................5
Conclusion..............................................................................................................6
References............................................................................................................... 6
2. Bhim Singh v. State of Jammu & Kashmir.........................................7
Facts of the Case.................................................................................... 7
Summary of Court Judgement...............................................................8
Analysis................................................................................................. 8
Conclusion............................................................................................. 9
References............................................................................................. 9
1. Shafin Jahan v. K.M. Asokan

Areas Details

Name of the Case Shafin Jahan v. Asokan K.M. & Ors.

 2018 (4) Scale 404

Case Citations
 AIR 2018 SC 357 (Equivalent Citation)
 Dipak Misra, CJI
Name of the Judges  DY Chandrachud, J
 Ajay Manikrao Khanwilkar, J.

Rules & Act  Article 226 of the Constitution of India

 Does the High Court have the power to annul the

marriage of an adult under Article 226?

Issues  Whether a man or woman above the age of twenty-

one and eighteen respectively must take prior
approval of their parents before consummating a
marriage

Facts of the Case.

1. Hadiya, also known as Akhila, was the only daughter to one Mr. Asokan. As a student of
Bachelor of Homeopathic Medical & Surgery (BHMS), she stayed in an independent
house with her friends (Jaseena and Faseena).

2. On 06/01/2016 Mr. Asokan was notified by one of her daughter’s friends that she had
worn a ‘Pardah’ to college that day and, that she was inspired by someone to change her
faith. When Hadiya came to Salem to visit her father, she stayed at the house of one Mr.
Aboobacker, the father of Jaseena and Faseena. Then, Mr. Asokan went in search of his
daughter only later was he aware of this fact after Ms. Archana, a friend of Hadiya,
notified him of her stay.

3. A while later, Hadiya had escaped Mr. Aboobacker’s house on the same day.
Disgruntled, Mr. Asokan filed a complaint to the nearby police station. Upon no
furtherance on this matter, he filed a Writ Petition of Habeas Corpus before the Division
Bench of the High Court of Kerala being W.P. (Criminal) No. 25 of 2016.

4. From this point on date forward, the detenue, Ms. Hadiya, shifted her residence from
place to place depending on the orders passed by the Division Bench. It was on
 20/01/2016 she was admitted into one Markazul Sathyasarani Educational and Charitable
Trust at Kuruvambram, Manjeri in Mamallapuram District, with the help of Ms. Sainaba,
on her own free will. This was held by the Court in the same manner that she had her free
will to do so and that these actions of her are of ‘her own wish and will’.

5. During the writ petition hearings, on 21/12/2016, the court is notified of her marriage to
one Mr. Shafin Jahan. On this matter, the Kerala High Court recorded it as “absolute
dissatisfaction, at the manner in which the marriage, if at all one has been performed has
been conducted”.

6. The court held the being annulled and said that Hadiya, was in her rights, exercised her
free will in her choice to live at Sathyasarani Educational and Charitable trust. It had
exercised its powers under the parens patriae jurisdiction to ‘supervise’ the parties
through right and wrong as a parent of the nation.

7. The High Court concluded that the marriage “is only a sham and is of no consequence”.

8. Nearly seven months since the first petition, Mr. Asokan filed a second writ petition of
Habeus Corpus alleging that his daughter was likely to be transported out of the country.

9. The High Court gave Mr. Asokan the responsibility to keep his daughter in custody until
she may realize of her actions. In addition to this, the high court had initiated the National
Investigation Agency (NIA) to investigate the aspect of marriage and Shafin Jahan for
securing the safety of the Nation as he had a criminal record.

10. Displeased by this, Shafin Jahan through a special leave petition appealed to the Supreme
Court.

Summary of Court Judgement

 The Appeal was allowed and the marriage between Shafin Jahan and Hadiya is declared
to be valid.

 The National Investigation Agency which is one the respondents is given the
responsibility to make an inquiry if there is any chance that the marriage was made out of
undue influence. Till then the marriage stands to be fully valid.

 Also High Court has over exercised it’s jurisdiction under article 226 as it not allowed to
issue orders in personal matters and also the habeas corpus writ which was allowed was
 also not right as there was no forceful detention and the said detune appeared before the
court whenever she was called for.

Analysis

 As per D. D. Basu’s, “The writ of Habeus Corpus Ad Subjiciendum” unlike other writs,
is a prerogative writ, that is to say, it is an extraordinary remedy, which is issued upon
cause shown in cases where the ordinary legal remedies are inapplicable or inadequate.
This writ is a writ of right and is granted ex debito justitiate. It is not, however, a writ of
course. Both at common law and by statute, the writ of Habeus Corpus may be granted
only upon reasonable ground for its issue being shown. The writ may not in general be
refused merely because an alternative remedy by which the validity of the detention can
be questioned. It also stated that “any person is entitled to institute proceedings to obtain
a writ of Habeus Corpus for the purpose of liberating another from an illegal
imprisonment and any person who is legally entitled to the custody of another may apply
for the writ in order to regain custody.”

 Here, Mr. Asokan filed a second writ petition, before the Kerala High Court of Kerala, to
detain his daughter Hadiya, alias Akhila, to prevent her from leaving for Syria, allegedly,
under ‘love jihad’. The marriage between Hadiya and Shafin Jahan, her husband, came as
a shock to everyone in the court hall when she mentioned it, during the proceeding. This
was a cause for concern for her father as it was a reason for believing that Hadiya was
under illegal confinement and was forced to go out of the country. He filed the petition to
prevent her from leaving the country as the locus standi of being her father. The high
court further went into this issue. It stated, the High Court by powers conferred under
Article 226, had the right to issue a judgment declaring the marriage null and void to
prevent her from leaving the country with her husband. The court invoked its parens
patriae jurisdiction in dictating terms as to what ought to be done by the party, who is a
major.

 The Supreme Court in the interim order given by D. Y. Chandrachud J., put forth its
dissatisfaction in the actions of the High court bench’s actions where it utilized its
inherent powers more than its judicial power. It was unwarranted of the High Court to
annul the marriage in Habeus Corpus case. D. Y. Chandrachud J. stated that the court’s
jurisdiction over the case ends when the detenue, for whom the writ petition was filed,
 presents before the court of their age-majority and the willingness to do as they please it
represents their free will which is protected by the fundamental rights conferred under the
Constitution. In addition, the High Court is ought to protect such rights. Therefore, in its
actions, it was unwarranted of it to annul the marriage by going out of its jurisdiction in
the present case.

 The high court commented on and held its view on the family law aspect as well. In
addition to holding the marriage void, the High Court of Kerala observed that marriage is
an important decision of human life and that it should be taken along with parents. The
Supreme Court of India in delivering its final verdict held that marriage between Shafin
Jahan and Hadiya was a valid one and that Hadiya need not have received the consent of
her parents as she was of twenty-four years of age and had clearly attained majority.

Conclusion

 As per the analysis on the facts and judgement from different Courts, the Supreme Court
of India was right and instrumental in highlighting the fact that an adult need not take the
consent or opinion of her parents/guardians for consummating her marriage.

References.

1. Case Brief: Shafin Jahan vs Ashokan K.M. & Ors. (Hadiya Marriage Case) - LawBhoomi

2. 35.-Shrivijay-Arvind.pdf (lsyndicate.com)
2. Bhim Singh v. State of Jammu & Kashmir

Areas Details

Name of the Case Bhim Singh v. State of Jammu &Kashmir

2018 (4) Scale 404

Case Citations
AIR 2018 SC 357 (Equivalent Citations)

Name of the Judges/Bench

O. Chinnappa Reddy and V. Khalid
Details

 Section 153 A of Ranbir Penal Code

 CrPC Section 56:
Rules & Act  CrPC Section 76 (2):
 Constitutional Right under Article 21
 Constitutional Right under Article 22
 Whether the detention made here was illegal and
Issues
fit for the claims of False Imprisonment?

Facts of the Case.

1. Mr. Bhim Singh an MLA of Jammu and Kashmir was arrested and detained in police
custody and was deliberately prevented from attending the sessions of the legislative
assembly to be held on 11th September 1985.

2. He was arrested on an intervening night between 9th and 10th September 1985 by the
station house officer of Quiz Kunda police station, on the allegation that a case under
section 153A of Ranbir Penal Code was registered against him for delivering an
inflammatory speech at the public meeting held near parade ground, Jammu on 8th
September 1985.

3. As he was not produced before the Magistrate till 13th September and his whereabouts
were not known, his wife filed a writ of Habeas Corpus before the Supreme Court. On
the inquiry of the Supreme Court, it was found that Mr. Bhim Singh was illegally
detained by the police personnel, aided either by collusion or by a casual attitude with the
Magistrate, who ordered for remand without production of the arrested person before
him.

4. The Court pointed out that the Magistrate acted without any sense of responsibility or
genuine concern for the personal liberty and the police arrested the imprisoned with
 mischievous and malicious intent and it was certainly was a gross violation of the
constitutional right of the accused person under article 21 and 22(2).

Summary of Court Judgement

 The Court observed that the police officers acted in a most high handed way and opined
“if the personal liberty of a member of the legislative assembly is to be played within this
fashion one can only wonder what may happen to lesser mortals”. Further, reminded the
duties of “police officers who are the custodians of law and order should have the
greatest respect for personal liberty of citizens and should not float the laws by stopping
to such weird acts of lawlessness.

 Custodians of law and order should not become depredators of civil liberties. Their duty
is to protect and to abduct.” Chinnappa Reddy J. and Khalid J. followed the decision of
Supreme Court in RudulSah and Sebastian Hongray cases and expressed the view that
when a person comes to us with the complaint that he has been arrested and imprisoned
with mischievous and malicious intent and that his Constitutional and legal rights were
invaded, the mischief or malice and invasion may not be washed away or whisked-away
by his being set free.

 In appropriate cases, we have the jurisdiction to compensate the victim by awarding

suitable monetary compensation. We consider this an appropriate case. We direct the first
respondent the State of Jammu and Kashmir to pay Sri.Bhim Singh a sum of Rs. 50,000
within two months from today.

Analysis

 The wrongdoing of imprisonment is one in every of the foremost severe kinds of human
rights violations. He was deprived of his constitutional right to attend the assembly
session and violation of fundamental right to personal liberty. This case brings forward
the varied banned detentions by the force. simply because an individual has been alleged
of a wrong, it doesn't mean that the person loses all his basic rights.

 The Indian socio-legal system is based on non-violence, mutual respect, and human
dignity of the individual. Even the prisoners have human rights because the prison torture
is not the last drug in the Justice Pharmacopoeia but a confession of failure to do justice
to a living man. In fact, Article 21 of the Indian Constitution also recognizes the same.
Article 20 with its sub-clauses re-enforces the same and seeks to protect convicts from
 being held down due to ex post facto laws (Art. 20 (a)), double jeopardy (Art. 20 (b)) and
self-incrimination (Art. 20 (c)).

 The right of a person to personal liberty, freedom, and life with dignity has been
guaranteed by the Constitution under Articles 20 and 21 cannot be abrogated even during
an emergency, and false imprisonment is incongruous of the same. The fact that a convict
is imprisoned and must serve a sentence, doesn’t give the jail authorities any right to
torment or torture him unnecessarily. It is a false notion that the prisoner subject to
intolerable hardships is remediless.

 The term of imprisonment is a decisive and vital factor to be taken into consideration to
compute and award damages. And while awarding damages for false imprisonment
physical or mental injury must be kept in mind. The mere fact that the person has been
imprisoned raises the claim of nominal or compensatory damages if no other injury was
caused to the plaintiff.

 If the person is unlawfully confined by any police officer or government officer, then he
or any person on his behalf can file for the writ of habeas corpus. The writ ensures the
liberty of the person who is confined. The person who is about to be falsely arrested or
imprisoned can also use reasonable force to prevent false arrest. He can use force for self-
defense but must make sure that the force used is reasonable according to the
circumstances.

Conclusion

Social justice and individual liberty have been included in the very nature of the Indian
Constitution which has guaranteed fundamental rights to its citizens which cannot be invaded.
In case those rights are in any way compromised, there are remedies in forms of writs to
enjoy the rights they are entitled to, and these writ remedies are enforceable by the Supreme
Court and High Court of the respective states. As a part of those writ remedies, the Court
award monetary compensation to the affected as discussed in the case above.

References.

1. Bhim Singh v. State of Jammu & Kashmir: Case Comment. - Indian Legal Solution

2. Bhim Singh v. State of Jammu & Kashmir - The Company Ninja

3. Case Analysis: Bhim Singh v/s Jammu And Kashmir (legalserviceindia.com)