Case BriefsSupreme Court

Supreme Court: Terming the Hadiya case as the perfect example of “patriarchal autocracy and possibly self ­obsession with the feeling that a female is a chattel”, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ set aside the Kerala High Court verdict and held that the High Court has completely erred by taking upon itself the burden of annulling the marriage between two consenting adults, namely, Hadiya and Shafin Jahan.

Below are the important facts of the case:

  • 24-year-old Akhila alias Hadiya, had converted to Islam after staying with 2 of her friends, Jaseena and Faseena, while completing her Bachelor of Homeopathic Medicine and Surgery (BHMS) degree.
  • Hadiya refused to return to her father Asokan’s place after he filed a writ of habeas corpus before Kerala High Court in January, 2016 on the apprehension that his daughter was likely to be transported out of the country.
  • Hadiya continued to stay at the house of her aforementioned friends. She expressed her desire to complete her House   Surgeoncy   at  the  Shivaraj Homeopathic   Medical   College, Salem which has a hostel for women   where   she   was   willing   to   reside   for   the   purpose   of completing her House Surgeoncy.
  • On 21.12.2016, Hadiya appeared before the High Court and a statement was made that she had entered into marriage with Shafin Jahan. High Court noted that the marriage was totally unexpected.
  • High Court in the impugned judgment held that a girl aged 24 years is weak and vulnerable and capable   of   being   exploited   in   many ways and thereafter, the Court, exercising the parens patriae jurisdiction, observed that it was concerned with the welfare of the girl of her age and hence, the custody of Akhila alias Hadiya should be given to her parents.

The Kerala High Court allowed her to complete her studies but held:

“Her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents. The marriage which is alleged to have been performed is a sham and is of no consequence in the eye of law.”

CJI, writing for himself and Khanwilkar, J, held that non­-acceptance of Hadiya’s choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived.

He wrote:

“The exposé of facts in the present case depicts that story giving it a colour of different narrative. It is different since the State that is expected to facilitate the enjoyment of legal rights of a citizen has also supported the cause of a father, an obstinate one, who has endeavoured immensely in not allowing his daughter to make her own choice in adhering to a faith and further making Everestine effort to garrotte her desire to live with the man with whom she has entered into wedlock.”

Chandrachud, J also came down heavily upon the Kerala High Court for following an erroneous approach and writing down a separate but concurring judgment, said:

“The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a ‘just’ way of life or ‘correct’ course of living for Hadiya. She has absolute autonomy over her person. Hadiya appeared before the High Court and stated that she was not under illegal confinement. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226.”

The Court, however, permitted the National Investigation Agency (NIA) to continue the investigation in respect of any matter of criminality. However, the validity of the marriage between Shafin Jahan and Hadiya shall not form the subject matter of the investigation. The Court made it clear that “nothing contained in the interim order of this Court will be construed as empowering the investigating agency to interfere in the lives which the young couple seeks to lead as law abiding citizens.”

The Court had passed the operative order in the present matter on 08.03.2018.

[Shafin Jahan v. Asokan K.M.,  2018 SCC OnLine SC 343, decided on 09.04.2018]

Case BriefsSupreme Court

Supreme Court:  Setting aside the judgment of Kerala High Court that had annulled the marriage of Hadiya and Shafin Jahan, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ asked the National Investigation Agency (NIA) to continue its probe in the Kerala ‘love jihad’ case without interfering in the marriage of Hadiya and Shafin Jahan.

Though the detailed reasoned order of the Court is yet to be released, writing down the operative part of the order in the matter, the Bench said:

“the High Court should not have annulled the marriage between appellant No.1, Shafin Jahan and Hadiya alias Akhila Asokan, in a Habeas Corpus petition under Article 226 of the Constitution of India. We say so because in the present appeal, by special leave, we had directed the personal presence of Hadiya alias Akhila Asokan; she appeared before this Court on 27th November, 2017, and admitted her marriage with appellant No.1.”

The Court also said:

“Hadiya alias Akhila Asokan is at liberty to pursue her future endeavours according to law.”

It was, however, made clear that the investigations by the NIA in respect of any matter of criminality will continue in accordance with law.

Earlier, the Court had said that the NIA cannot go into the legality of the marriage of Hadiya and Shafin Jahan as Hadiya is a 24-year-old adult and has the right to marry any adult man of her choice. The Court noticed that NIA probe will have no bearing in deciding the aspects of her legitimacy of marriage of Hadiya and Shafin Jahan which was annulled by Kerala High Court. The bench had removed Hadiya from the custody of her father and had sent her to college after she expressed her wish to continue her studies. [Shafin Jahan v. Asokan K.M., 2018 SCC OnLine SC 201, order dated 08.03.2018]


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Supreme Court: After the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ refused the plea of Hadiya’s father Asokan to hold an in-camera hearing when Hadiya appears before it, Hadiya appeared before the bench and Senior Advocate Kapil Sibal said that Hadiya has the right to make her own decisions.

The Court heard National Investigation Agency (NIA) which submitted a 100-page report on the cases where Muslim boys have converted Hindu girls by marrying them and that the case of Shafin Jahan marrying Hadiya was also that of Love Jihad. Earlier, the Court had directed NIA to look into the matter in order to facilitate the Court in determining the extent of the ramifications of the issue and said that it will take a decision only after considering all the aspects i.e. NIA report, Kerala Police report and the views of the girl and had hence, directed the presence of Hadiya before it. The bench had also made it clear that it will speak to her not in camera but in open Court.

Kapil Sibal insisted that since Hadiya was present in the Court, it should listen to her and not NIA. When asked by the Court what does she want, Hadiya said:

“I want my freedom.”

Upon being asked whether she wanted to continue her studies on state’s expense, Hadiya said:

“I want to but not on state’s expense when my husband can take care of me.”

Removing her from the custody of her father, the Court directed that Hadiya be taken to college for her studies and that college should allow facility of hostel to her. The matter will now be taken up in the third week of January.

Source: ANI

Case BriefsSupreme Court

Supreme Court: In the case where Kerala High Court annulled the marriage of a Hindu Girl to a Muslim Boy after her conversion to Islam calling it a case of Love Jihad, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ directed the presence of the girl Hadiya before it on 27.11.2017. The bench said:

“this Court shall speak to her not in camera but in open Court.”

The Court also took note of the submissions of Additional Solicitor General Maninder Singh, appearing on behalf of the National Investigation Agency and Senior Advocate Shaym Divan, appearing for the father of the girl that in a case of the present nature when there is material with regard to a pattern of indoctrination, the choice of the person should not be treated as absolute for guiding the jurisdictional spectrum of habeas corpus.

The counsels highlighted the antecedents of the boy and his association with the Popular Front of India, he should not be straight away allowed on the basis of the interaction with the lady until the larger issue is decided.

Senior Advocate Kapil SIbal, appearing for the petitioner i.e. Hadiya’s husband, objected to the said contention.

Earlier, the Court had said that the father can’t insist on her custody.

The Court has listed the matter on 27.11.2017 and Senior Advocate Shyam Divan has taken the undertaking that his client will produce his daughter Hadiya before the Court on the said date. [Shafin Jahan v. Asokan K.M.,  2017 SCC OnLine SC 1259, order dated 30.10.2017]


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Supreme Court: In the case where Kerala High Court annulled the marriage of a Hindu Girl to a Muslim Boy after her conversion to Islam calling it a case of Love Jihad, the bench headed by Dipak Misra, CJ questioned the Kerala High Court order and asked how can a High Court, in exercise of Article 226 of the Constitution, annul the marriage of a 24 year old girl and force her to live with her father. CJI said:

“Either we will appoint loco parentis or we will send her somewhere safe. Father can’t insist on her custody.”

Earlier, on 16.08.2017, the bench of the then Chief Justice of India, Justice JS Khehar and Dr. DY Chandrachud, J had ordered a probe by the National Investigation Agency (NIA) after the NIA had told the Court that there is a possibility of this being a case of Love Jihad as many cases have come up where the Muslim boys have converted Hindu girls and have married them. The Court had directed NIA to look into the matter in order to facilitate the Court in determining the extent of the ramifications of the issue and said that it will take a decision only after considering all the aspects i.e. NIA report, Kerala Police report and the views of the girl.

Appearing for Shafin Jahan, whose marriage with Hadiya was annulled by the Kerala High Court, Senior Advocate Dushyant Dave argued that the order directing NIA Probe struck at the very foundation of this multi-religious society and was sending terrible signals across the world.  Rejecting his contention that the Court could not have travelled beyond the prayers made in the petition and ordered an NIA investigation, the Court held that it had the power to do so depending on the facts of each case. The Court will, however, observed that Hadiya’s father could not claim custody to her as she was an adult.

The issue reached the Supreme court after Kerala-native Shafin Jahan challenged the annulment of his marriage by the Kerala High Court which ordered the State police to probe such cases. It was alleged that the girl, a Hindu, who had converted to Islam and later married Jahan, was recruited by Islamic State’s mission in Syria and Jahan was only a stooge.

The Court will now hear the matter on 09.10.2017.

Source: Indian Express