SHAFIN JAHAN v. ASOKAN K.M. & ORS.

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A petition for habeas corpus, the High Court by its order dated 19 January 2016 expressly noticed that Hadiya was not willing to return to her parental home. Taking note of the desire of Hadiya to reside at Sathyasarani, the High Court observed that “the alleged detenue needs to be given liberty to take her own decision with respect to her future life.” B With the passing of that order the writ petition was withdrawn on 25 January 2016. Yet, again, when a second petition was filed, it was evident before the High Court that Hadiya had no desire to stay with her parents. She is a major. The Division Bench on this occasion paid scant regard to the earlier outcome and to the decision of a coordinate Bench. The C High Court inexplicably sought to deviate from the course adopted in the earlier proceeding.

16. 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 D 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 purpose of the habeas corpus petition ended. It had to be closed as the earlier Bench E had done. The High Court has entered into a domain which is alien to its jurisdiction in a habeas corpus petition. The High Court did not take kindly to the conduct of Hadiya, noting that when it had adjourned the proceedings to issue directions to enable her to pursue her studies, it was at that stage that she appeared with Shafin Jahan only to inform the court of their marriage. How Hadiya chooses to lead her life is entirely F a matter of her choice. The High Court’s view of her lack of candour with the court has no bearing on the legality of her marriage or her right to decide for herself, whom she desires to live with or marry.

17. The exercise of the jurisdiction to declare the marriage null and void, while entertaining a petition for habeas corpus, is plainly in excess of judicial power. The High Court has transgressed the limits on its jurisdiction in a habeas corpus petition. In the process, there has been a serious transgression of constitutional rights. That is the second facet to which we now turn.

18. Hadiya and Shafin Jahan are adults. Under Muslim law, marriage or Nikah is a contract. Muslim law recognises the right of

SHAFIN JAHAN v. ASOKAN K.M. & ORS. 999 [DR. D. Y. CHANDRACHUD, J.]

adults to marry by their own free will. The conditions for a valid Muslim A marriage are: (i) Both the individuals must profess Islam; (ii) Both should be of the age of puberty; (iii) There has to be an offer and acceptance and two witnesses B must be present; (iv) Dower and Mehar; and (v) Absence of a prohibited degree of relationship.

19. A marriage can be dissolved at the behest of parties to it, by a C competent court of law. Marital status is conferred through legislation or, as the case may be, custom. Deprivation of marital status is a matter of serious import and must be strictly in accordance with law. The High Court in the exercise of its jurisdiction under Article 226 ought not to have embarked on the course of annulling the marriage. The Constitution recognises the liberty and autonomy which inheres in each individual. D This includes the ability to take decisions on aspects which define one’s personhood and identity. The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme. The law prescribes conditions for a valid marriage. It provides remedies when relationships run aground. Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution. In deciding whether Shafin Jahan is a fit person for Hadiya to marry, the High Court has entered into prohibited terrain. Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences.

20. Article 16 of the Universal Declaration of Human Rights underscores the fundamental importance of marriage as an incident of human liberty: H

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A “Article 16. (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

21. The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled. These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining our choice of partners.

F 22. In Justice K S Puttaswamy v Union of India14, this Court in a decision of nine judges held that the ability to make decisions on matters close to one’s life is an inviolable aspect of the human personality: “The autonomy of the individual is the ability to make decisions on vital matters of concern to life… The intersection between G one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination… The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual.” 14 H 2017 (10) SCC 1

SHAFIN JAHAN v. ASOKAN K.M. & ORS. 1001 [DR. D. Y. CHANDRACHUD, J.]

A Constitution Bench of this Court, in Common Cause (A Regd. A Society) v Union of India15, held: “Our autonomy as persons is founded on the ability to decide: on what to wear and how to dress, on what to eat and on the food that we share, on when to speak and what we speak, on the right to believe or not to believe, on whom to love and whom to partner, and to freely decide on innumerable matters of consequence and detail to our daily lives.” The strength of the Constitution, therefore, lies in the guarantee which it affords that each individual will have a protected entitlement in determining a choice of partner to share intimacies within or outside marriage.

23. The High Court, in the present case, has treaded on an area which must be out of bounds for a constitutional court. The views of the High Court have encroached into a private space reserved for women and men in which neither law nor the judges can intrude. The High D Court was of the view that at twenty four, Hadiya “is weak and vulnerable, capable of being exploited in many ways”. The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. The concern of this Court in intervening in this matter is as much about the miscarriage of justice that has resulted in the High E Court as much as about the paternalism which underlies the approach to constitutional interpretation reflected in the judgment in appeal. The superior courts, when they exercise their jurisdiction parens patriae do so in the case of persons who are incapable of asserting a free will such as minors or persons of unsound mind. The exercise of that jurisdiction should not transgress into the area of determining the suitability of partners to a marital tie. That decision rests exclusively with the individuals themselves. Neither the state nor society can intrude into that domain. The strength of our Constitution lies in its acceptance of the plurality and diversity of our culture. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture. The 15 Writ Petition(Civil) No. 215 of 2005 H

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A Constitution protects it. Courts are duty bound not to swerve from the path of upholding our pluralism and diversity as a nation.

24. Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms. Others are dissuaded to exercise their liberties for fear of the reprisals which may result upon the free B exercise of choice. The chilling effect on others has a pernicious tendency to prevent them from asserting their liberty. Public spectacles involving a harsh exercise of State power prevent the exercise of freedom, by others in the same milieu. Nothing can be as destructive of freedom and liberty. Fear silences freedom.

C 25. We have not been impressed with the submission of Mr. Shyam Divan, learned senior counsel that it was necessary for the High Court to nullify, what he describes as a fraud on the Court, as an incident of dealing with conduct obstructing the administration of the justice. Whether or not Hadiya chose to marry Shafin Jahan was irrelevant to the outcome of the habeas corpus petition. Even if she were not to be married to him, D all that she was required to clarify was whether she was in illegal confinement. If she was not, and desired to pursue her own endeavours, that was the end of the matter in a habeas corpus petition. The fact that she decided to get married during the pendency of the proceedings had no bearing on the outcome of the habeas corpus petition. Constitutionally E it could have no bearing on the outcome.

26. During the course of the proceedings, this Court by its interim order had allowed the National Investigation Agency to assist the Court. Subsequently, NIA was permitted to carry out an investigation. We clarify that NIA may exercise its authority in accordance with the law within F the bounds of the authority conferred upon it by statute. However, the validity of the marriage between Shafin Jahan and Hadiya shall not form the subject matter of the investigation. Moreover, 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. G

27. The appeal stands allowed in terms of our order dated 8 March

2018. The judgment of the High Court is set aside.

Devika Gujral Appeal allowed.