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Hadiya Marriage: Shafin Jahan vs. K.M. Ashokan & Ors (AIR 2018 SC 357)

AUTHOR- Tanya Sinha, Thakur Ramnarayan College of Law, Mumbai University.


1. Facts of the Case

Hadiya Jahan was originally a 25 year old Hindu girl named Akhila Ashokan. She converted herself into Muslim and accepted Islam while she was studying medical studies in Homeopathy (BHMS) from Shiva raj Homeopathic Medical College, Salem in Coimbatore, Tamil Nadu. She met a Muslim man named Shafin Jahan and got married to him at the age of 25 years.

As soon as Akhila’s father Mr Ashokan found out about the marriage he filed a complaint against Shafin Jahan before S.P. Malappuram District. But no progress was made by the police in their investigation and so Mr Ashokan moved a habeas corpus petition before the division bench of the High Court of Kerala and alleged that his daughter Hadiya was forced and misled to convert herself into a Muslim. He further alleged that Akhila’s husband had links to extremist Muslim organizations. The Hadiya case has been dubbed as "love jihad", a practice in which vulnerable Hindu women are allegedly lured by Muslim men who are agents of terrorist groups. His apprehension was that his daughter was likely to be transported out of the country. Hadiya maintained throughout the High Court proceedings that her conversion to Islam as well as her marriage to Shafin Jahan was of her own volition. Hadiya has filed an affidavit expressly affirming her conversion to Islam and her marriage to Shafin Jahan.

Hadiya appeared before the Kerala High Court and that she had accepted Islam by her own choice. Seven months later, Mr Ashokan filed another petition in the nature of habeas corpus alleging that Hadiya had been subjected to forced conversion and was mostly to be transported out of India. 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. On 24th May, 2017, the High Court by the impugned judgment and order annulled the marriage and called it a ‘sham’ holding that the marriage is of no consequence in the eyes of law . The court said that the safety of the girls must be taken into account and so the custody of Akhila \ Hadiya was given to her parents. Hadiya’s husband approached the Supreme Court to challenge the annulment.[1]

2. Issues raised:

i) Does the High Court have the power to annul the marriage of an adult under Article 226 of the Indian Constitution?

3. Rules

§ Article 226 of the Indian Constitution

§ Article 21 of the Indian Constitution.

§ Article 16 of the Universal Declaration of Human Rights

§ Section 6 of the National Investigation Agency Act, 2008

4. Analysis

§ Petitioner: Mr Shafin Jahan

§ Respondents: Mr. Ashokan K. M.; The Superintendent of Police, Malappuram; The Superintendent of Police, Kottayam; Inspector General of Police, Kerala; National Investigation Agency; Markazul Hidaya, Sathyasarani Educational and Charitable Trust, Kerala; A.S.Sainaba, Kerala; Ms. Hadiya alias Akhila Ashokan. § May , 2017 Mr Ashokan filed a petition before the High Court of Kerala

A writ petition was filed in the nature of habeas corpus by Mr Ashokan before the HC of Kerala. On 24th May, 2017, the High Court Justices Surendra Mohan Kuriakose and Abraham Mathew by the impugned judgment and order annulled the marriage and called it a ‘sham’ holding that the marriage is of no consequence in the eyes of law. The reasons given were that a girl aged 24 years is weak and vulnerable and capable of being exploited in many ways and so the Court, exercising the Parens Patriae jurisdiction, observed that it was concerned with the welfare of the girl of her age. The High Court further allowed her to complete her House Surgeoncy Course and become professionally qualified so that she would be in a position to stand independently. And that since marriage being one of the most important decisions in life can also be taken only with the active involvement of her parents. Hadiya’s husband Mr Shafin Jahan had no authority to act as Hadiya’s guardian. Hence, the alleged marriage is null and void. The petitioner, Shafin Jahan challenged the Kerala High Court judgment which annulled Hadiya’s marriage by making an appeal in the Supreme Court.

i. On 7th August,2017 , the bench served notice to National Investigation Agency (NIA), to provide a neutral and unbiased assistance to the court in the matter. The bench has asked the NIA investigation into suspected terror links of Mr. Shafin Jahan has pushed this marriage case to national headlines and conduct the investigation under Section 6 of the National Investigation Agency Act, 2008, and place the outcome of enquiry before this Court.

ii. On 16th August,2017 , Mr. Jahan's counsel began by revoking the objection to the NIA carrying out the investigation, subject to the Court assuring that the investigation is fair. To ensure that the investigation carried out by the National Investigation Agency was fair, the bench directed that investigation would be carried under retired Supreme Court judge, Justice R.V. Raveendran.

iii. On 3rd October, 2017 Mr. Dushyant Dave appearing for Hadiya’s husband Shafin Jahan argued that the court had overstepped the limits of jurisdiction by ordering an NIA probe into the issue, for doing so was contrary to the very spirit of a multi-religious society. On the question of the judicial propriety of the NIA probe, ASG Tushar Mehta contended that the probe had been consented to by Shafin Jahan’s earlier counsel Mr. Kapil Sibal and the same was necessary to determine whether Hadiya’s was an isolated case or there was an emerging pattern. CJI Dipak Misra further stated the possibility of appointing an alternate custodian for Hadiya who is currently in the custody of her father.

iv. On 9th October, 2017, Dushyant Dave appearing Hadiya’s husband Shafin Jahan stated before the court that the Kerala High Court in 5 of its previous orders had taken note of Hadiya's admission that she embraced Islam of her own volition with a number of affidavits being filed by her to that effect. He further argued that the present petition would be struck by the doctrine of res judicata for the Kerala High Court has previously dismissed a habeas corpus petition in the given case. Mr. Dave urged the Court that the impleadment applications alleging the broader issue of “Love Jihad” quoting incidents from 2013-14 should be considered separately and the present case should be limited to the cause of the petitioner and his wife, who is a consenting 24-year-old adult in the marriage. Chief Justice Misra further observed that in a habeas corpus petition, if a mentally sound woman had made a decision to live at a particular place, she would be allowed to do so with dignity and the court would not intervene in such circumstances, thus limiting the scope of the view taken by the Kerala High Court. He further requested that the court grant audience to Hadiya’s testimony and let her decide whether she would like to accompany the petitioner. The Bench did not heed the aforesaid requests and has listed the case for for next hearing.

v. On 30th October,2017, In the last hearing on 9th October, the court had refused the prayer by Mr. Dushyant Dave to put Hadiya out of her parent's custody. ASG Maninder Singh, appearing for the respondent opposed the prayer. He noted that due to indoctrination, Hadiya’s opinion and consent could not be said to be free. The Chief Justice first questioned the basis of Mr Singh conclusion that there was no free consent and added that a single case could not define the essentiality of the law. Mr.Singh next brought to the attention of the Court the NIA Report which showed that there were more than 89 cases of indoctrination in Kerala alone, of which 9 were carried out by the organization that was being held responsible in this case. However, the Chief Justice pointed out that nothing illegal had been disclosed in any of these instances. Mr Shyam Divan, Senior Counsel appearing for Hadiya's father started by stressing that the only logical next step was to examine and take a principled view of the NIA report findings. There was no change in circumstances justifying a change in the course of proceedings, he observed. The Chief Justice then stated that all of these points, as well as the larger legal question of whether indoctrination was to be considered in a habeas corpus petition, would be decided after the young woman was produced before the Court. Since the Court was not directing that she be given to her husband’s custody, there was no reason to discuss his antecedents at this point. This question of where she would go would be considered last, after deciding the factors to take into account in – only her own volition or indoctrination as well.

vi. On 27th November, 2017, Ms. Hadiya testified in open court on her choice. Mr Maninder Singh, ASG, submitted the NIA Report to the bench. He argued that Hadiya’s narrative of meeting her husband on a matrimonial site was false according to the NIA Report. Alluding to the NIA Report, he said that Kerala Police had handed 89 cases of suspected indoctrination to NIA which it was investigating. He requested the bench to look at the larger issue of indoctrination before deciding the individual instance of Hadiya. The court was giving serious consideration to the materials without interacting with the adult. He said that Hadiya had the right to marry under article 21 of the Indian Constitution , whoever she wished and the court should not decide on her behalf. The Parens Patriae jurisdiction (right to decide on someone else’s behalf) of the court cannot be triggered unless the person is a minor or lunatic. The Court then asked Ms Hadiya to take the stand for testimony. Mr. Giri, senior advocate for the State of Kerala assisted the Court in translation. Justice Chandrachud asked Ms Hadiya about her dreams for the future. Ms Hadiya replied – “I want freedom. I should be released.” The CJI enquired if she would want to continue her studies at the expense of the state, to which she responded that she wishes to continue her studies, but at her husband’s expenses and not the State. She also added that she would want her husband to be her guardian. Justice Chandrachud responded that wives are not chattel that they would need a guardian. He also mentioned that the husband could not stay in the hostel with her. At this point, Hadiya volunteered to speak that she was mentally harassed at home and doesn’t want to go back home and would want to go back with her husband .

vii. On 23rd January,2018, Being a 24-year old adult, Hadiya had the power to make her own decisions, and the Court could not compel her to go to her father or husband against her will. Neither could the Court look into the character of the person Hadiya had married. The bench reiterated that investigating the marriage in such a manner would set a 'bad precedent' in law.

viii. On 22nd February,2018, CJI Dipak Misra making it clear that Hadiya had made her wishes known and expressed her views in open court. The court would not therefore concern itself with the relationship between two adults. He asserted the need for compartmentalisation between marriage and the investigation by the NIA.

Justice D.Y. Chandrachud inquired that which courts could look into the rights and wrongs in a personal law matter between two adults such as marriage also if the government had information that citizens were being recruited for terrorist activities then it had sufficient power to stop them, by prohibiting them from travelling abroad, for instance. Courts could not annul any marriage on such assumptions, just as it could not stand in the Government’s way of dealing with the issue. Mr Divan submitted that the High Court had exercised its Parens Patriae jurisdiction in the interest of a “vulnerable adult” like Hadiya. He pointed out that the High court had enough material evidence and submissions, including Hadiya’s statements, that an organisational apparatus to recruit persons for terror activities was in place. He urged the bench to realise that this marriage was being used to keep these issues outside the purview of the court.

ix. On 8th March,2018, Justice Chandrachud enquired if the court could annul a marriage which was an intimate personal matter between two consenting adults? To which Mr Divan replied , 'Marriage Fraud' doctrine had been well recognised. It said the state could intervene in those marriages that had a 'purpose' and were ‘marriages of convenience’. As this marriage was a ploy to take her out of the protective jurisdiction of the High Court order and traffic her out of the country, the court could intervene. The Chief Justice remarked that the court was not concerned with the criminal aspect and that the NIA could inspect the issue separately, but was concerned with whether the court had the power to annul the marriage. The Chief Justice intervened to say that a habeas corpus petition only involved getting the person to court and asking his/her choice. In this regard, Hadiya had affirmed her willingness to be with her husband. Mr Divan also charged Mr Shafin with talking to an ISIS operative about sending an ISIS recruit and presented compilations showing the entire organisational apparatus.

Towards the end, Mr Maninder Singh, ASG, appearing for the NIA made a brief intervention on the limited point of NIA investigation. He urged the court to look into the NIA findings before pronouncing the judgment, as the investigation had been done on the orders of the court. The Chief Justice observed that the court would not investigate the marriage but the investigations into criminal antecedents could go on.

5. Judgment of the case

On 9th April 2018, the Supreme Court delivered its judgment in two seperate concurring opinions. It reversed the Kerala High Court's judgment, where it annuled Hadiya's marriage to Shafin Jahan.

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. Article 16 of the Universal Declaration of Human Rights underscores the fundamental importance of marriage as an incident of human liberty. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to find a family. 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.[2]

6. Conclusion

The case has marked its presence on the pages of history related to the subject of freedom of choice and will not be forgotten for a long time and will be reiterated in many other judgements of this court as it has displayed the immense strength of the Constitution that shows acceptance of plurality and diversity of different syncretic cultures. Marriage, plurality and individual choices should be zealously guarded from the state intervention is what has been observed in the judgement.

Thus, the High Court was wrong in using its powers under Article 226 to annul Hadiya’s marriage with Shafin Jahan.[3]




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