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

- **Citation:** [2018] 4 S.C.R. 955
- **Court:** Supreme Court of India
- **Decided:** 2018-04-09
- **Case number:** Criminal Appeal No. 366 of 2018
- **Bench:** Dipak Misra, A. M. Khanwilkar, Dr. D.Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shafin-jahan-v-asokan-k-m-ors-32888
- **Pages:** 48

## Headnote

Habeas Corpus: Writ petition of Habeas corpus filed by
respondent-father apprehending that her daughter (respondent
no.9) aged 26 years was likely to be transported out of the country -
Daughter of writ petitioner appeared before the Court and
categorically declined to go with her parents and expressed her
desire to stay with respondent no.7 - During pendency of writ
petition she entered into marriage with appellant - By impugned
order, High Court held that a girl aged 24 years is weak and
vulnerable and capable of being exploited in many ways and while
exercising parens patriae jurisdiction directed her custody to the
writ petitioner-father - With these directions, the High Court
declared the marriage between the appellant and respondent no.9
as null and void - On appeal, held: The expression of choice is a
fundamental right under Arts.19 and 21 of the Constitution, if the
said choice does not transgress any valid legal framework - Once
that aspect is clear, the enquiry and determination have to come to
an end - In a writ of habeas corpus, especially in the instant case,
it was absolutely unnecessary to reflect upon the social
radicalization - If there is any criminality in any sphere, it is for the
law enforcing agency to do the needful but as long as the detenu
has not been booked under law to justify the detention which is
under challenge, the obligation of the Court is to exercise the
celebrated writ that breathes life into our constitutional guarantee
of freedom - In the case at hand, the father in his own stand and
perception may feel that there has been enormous transgression of
his right to protect the interest of his daughter but his view point
cannot be allowed to curtail the fundamental rights of his daughter
who, out of her own volition, married the appellant - Therefore,
High Court completely erred by taking upon itself the burden of
annulling the marriage between the appellant and respondent no.9
[2018] 4 S.C.R. 955
955
A
B
C
D
E
F
G
H
956
SUPREME COURT REPORTS
[2018] 4 S.C.R.
when both stood embedded to their vow of matrimony - Constitution
of India - Arts.19 and 21. (Per Dipak Misra, CJI and A. M.
Khanwilkar, J.)
Habeas Corpus: Role of writ court in entertaining writ petition
of Habeas corpus - Held: The pivotal purpose of the writ of habeas
corpus is to see that no one is deprived of his/her liberty without
sanction of law - It is the primary duty of the State to see that the
said right is not sullied in any manner whatsoever and its sanctity is
not affected by any kind of subterfuge - The role of the Court is to
see that the detenu is produced before it, find out about his/her
independent choice and see to it that the person is released from
illegal restraint - The issue is different when the detention is not
illegal. (Per Dipak Misra, CJI and A.M. Khanwilkar, J.)
Habeas Corpus: Writ of Habeas Corpus - If alleged detenu
appears before the writ court and states that she was not under
illegal confinement, there is no warrant for the Court to proceed
further in exercise of its jurisdiction under Art.226 - Exercise of
jurisdiction to declare the marriage null and void while entertaining
a petition for habeas corpus is plainly in excess of judicial power -
Constitution of India - Art.226. (Dr. D.Y. Chandrachud, J.)
Constitution of India: Art.21 - Right of adult to marry a
person of his or her own choice - Jurisdiction of High Court to
annul marriage while entertaining writ of habeas corpus - Held:
Deprivation of marital status is a matter of serious import and must
be strictly in accordance with law - High Court in the exercise of its
jurisdiction under Art.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 - 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

## Text

_Characters 0–39,916 of 113,010. This is a partial read: ask again with offset=39916 for what follows._

A
B
C
D
E
F
G
H
955
SHAFIN JAHAN
v.
ASOKAN K.M. & ORS.
(Criminal Appeal No. 366 of 2018)
APRIL 09, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
Habeas Corpus: Writ petition of Habeas corpus filed by
respondent-father apprehending that her daughter (respondent
no.9) aged 26 years was likely to be transported out of the country -
Daughter of writ petitioner appeared before the Court and
categorically declined to go with her parents and expressed her
desire to stay with respondent no.7 - During pendency of writ
petition she entered into marriage with appellant - By impugned
order, High Court held that a girl aged 24 years is weak and
vulnerable and capable of being exploited in many ways and while
exercising parens patriae jurisdiction directed her custody to the
writ petitioner-father - With these directions, the High Court
declared the marriage between the appellant and respondent no.9
as null and void - On appeal, held: The expression of choice is a
fundamental right under Arts.19 and 21 of the Constitution, if the
said choice does not transgress any valid legal framework - Once
that aspect is clear, the enquiry and determination have to come to
an end - In a writ of habeas corpus, especially in the instant case,
it was absolutely unnecessary to reflect upon the social
radicalization - If there is any criminality in any sphere, it is for the
law enforcing agency to do the needful but as long as the detenu
has not been booked under law to justify the detention which is
under challenge, the obligation of the Court is to exercise the
celebrated writ that breathes life into our constitutional guarantee
of freedom - In the case at hand, the father in his own stand and
perception may feel that there has been enormous transgression of
his right to protect the interest of his daughter but his view point
cannot be allowed to curtail the fundamental rights of his daughter
who, out of her own volition, married the appellant - Therefore,
High Court completely erred by taking upon itself the burden of
annulling the marriage between the appellant and respondent no.9
[2018] 4 S.C.R. 955
955
A
B
C
D
E
F
G
H
956
SUPREME COURT REPORTS
[2018] 4 S.C.R.
when both stood embedded to their vow of matrimony - Constitution
of India - Arts.19 and 21. (Per Dipak Misra, CJI and A. M.
Khanwilkar, J.)
Habeas Corpus: Role of writ court in entertaining writ petition
of Habeas corpus - Held: The pivotal purpose of the writ of habeas
corpus is to see that no one is deprived of his/her liberty without
sanction of law - It is the primary duty of the State to see that the
said right is not sullied in any manner whatsoever and its sanctity is
not affected by any kind of subterfuge - The role of the Court is to
see that the detenu is produced before it, find out about his/her
independent choice and see to it that the person is released from
illegal restraint - The issue is different when the detention is not
illegal. (Per Dipak Misra, CJI and A.M. Khanwilkar, J.)
Habeas Corpus: Writ of Habeas Corpus - If alleged detenu
appears before the writ court and states that she was not under
illegal confinement, there is no warrant for the Court to proceed
further in exercise of its jurisdiction under Art.226 - Exercise of
jurisdiction to declare the marriage null and void while entertaining
a petition for habeas corpus is plainly in excess of judicial power -
Constitution of India - Art.226. (Dr. D.Y. Chandrachud, J.)
Constitution of India: Art.21 - Right of adult to marry a
person of his or her own choice - Jurisdiction of High Court to
annul marriage while entertaining writ of habeas corpus - Held:
Deprivation of marital status is a matter of serious import and must
be strictly in accordance with law - High Court in the exercise of its
jurisdiction under Art.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 - 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 - In deciding whether
appellant is a fit person for writ petitioner's daughter to marry, the
A
B
C
D
E
F
G
H
957
High Court entered into prohibited terrain - 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 - Habeas corpus - Universal Declaration of
Human Rights - Art.16. (Dr. D.Y. Chandrachud, J.)
Doctrines/Principles: Parens Patriae doctrine - Invocation
of - Held: The doctrine has to be invoked only in exceptional cases
where the parties before it are either mentally incompetent or have
not come of age and it is proved to the satisfaction of the court that
the said parties have either no parent/legal guardian or have an
abusive or negligent parent/legal guardian - In the instant case,
there was nothing to suggest that respondent no.9 suffered from
any kind of mental incapacity or vulnerability - She was absolutely
categorical in her submissions and unequivocal in the expression
of her choice - Therefore, High Court erred in invoking Parens
Patriae jurisdiction. (Per Dipak Misra, CJI and A.M. Khanwilkar, J.)
Doctrines/Principles: Parens Patriae doctrine - 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. (Dr. D.Y. Chandrachud, J.)
Words and phrases: Parens Patriae - Meaning of, discussed.
(Per Dipak Misra, CJI and A.M. Khanwilkar, J.)
Allowing the appeal, the Court
HELD: Per Dipak Misra, CJI and A.M. Khanwilkar, J.
1.1 The pivotal purpose of the writ of habeas corpus is to
see that no one is deprived of his/her liberty without sanction of
law. It is the primary duty of the State to see that the said right is
not sullied in any manner whatsoever and its sanctity is not affected
by any kind of subterfuge. [Para 27] [980-D]
SHAFIN JAHAN v. ASOKAN K.M. & ORS.
A
B
C
D
E
F
G
H
958
SUPREME COURT REPORTS
[2018] 4 S.C.R.
1.2 In the instant case, the High Court, has been
erroneously guided by some kind of social phenomenon that was
frescoed before it. The writ court has taken exception to the
marriage of the respondent No. 9 with the appellant. It felt
perturbed. There was nothing to be taken exception to. Initially,
respondent no.9 had declined to go with her father and expressed
her desire to stay with the respondent No.7 before the High Court
and in the first writ it had so directed. The adamantine attitude of
the father, possibly impelled by obsessive parental love,
compelled him to knock at the doors of the High Court in another
Habeas Corpus petition whereupon the High Court directed the
production of respondent no.9 who appeared on the given date
along with the appellant whom the High Court calls a stranger.
But respondent no.9 would insist that she had entered into
marriage with him. The High Court should have, after an
interaction as regards her choice, directed that she was free to
go where she wished to. [Para 28] [980-F-H; 981-A-C]
1.3 The High Court further erred by reflecting upon the
social radicalization and certain other aspects. The High Court
has been swayed away by the strategy, as it thought, adopted by
the respondent No.7 before it in connivance with the appellant
and others to move respondent no.9 out of the country. That is
not within the ambit of the writ of Habeas Corpus. The future
activity, if any, is required to be governed and controlled by the
State in accordance with law. The apprehension was not within
the arena of jurisdiction regard being had to the lis before it.
[Paras 29, 30] [981-C-D; E-F]
Ranjit Singh v. State of Pepsu (now Punjab) AIR 1959
SC 843 : [1959] Suppl. SCR 727; Kanu Sanyal v.
District Magistrate, Darjeeling and Others (1973) 2
SCC 674 : [1974] 1 SCR 621; Ummu Sabeena v. State
of Kerala and Others (2011) 10 SCC 781: [2011] 13
 SCR 185 - referred to.
Cox v. Hakes (1890) 15 AC 506; Secretary of State for
Home Affairs v. O'Brien [1923] AC 603 : [1923] ALL
E.R. Rep. 442 (HL); Greene v. Secy. of States for Home
Affairs [1942] AC 284 : [1941] 3 All ER 388 (HL);
Ware v. Sanders 146 Iowa 233 : 124 NW 1081 (1910)
- referred to.
A
B
C
D
E
F
G
H
959
P. Ramanatha Aiyar's Law Lexicon (1997 Edn.) -
referred to
2.1 Another aspect which calls for invalidating the order of
the High Court is the situation in which it has invoked the parens
patriae doctrine. Parens Patriae in Latin means "parent of the
nation". In law, it refers to the power of the State to intervene
against an abusive or negligent parent, legal guardian or informal
caretaker, and to act as the parent of any child or individual who
is in need of protection. "The parens patriae jurisdiction is
sometimes spoken of as 'supervisory'". [Para 31] [981-G]
Charan Lal Sahu v. Union of India (1990) 1 SCC 613
: [1989] 2 Suppl. SCR 597; Anuj Garg and Others v.
Hotel Association of India and others (2008) 3 SCC 1
: [2007] 12 SCR 991; Aruna Ramachandra Shanbaug
v. Union of India (2011) 4 SCC 454 : [2011] 4
SCR 1057; State of Kerala v. N.M. Thomas (1976) 2
SCC 310 : [1976] 1 SCR 906 - referred to.
Thomasset v. Thomasset [1894] P 295; City of Cleburne
v. Cleburne Living Center 473 US 432, 439-41: 105 S
Ct 3249 : 87 L Ed 2d 313 (1985) - referred to.
2.2 Constitutional Courts in this country exercise parens
patriae jurisdiction in matters of child custody treating the welfare
of the child as the paramount concern. There are situations when
the Court can invoke the parens patriae principle and the same
is required to be invoked only in exceptional situations. The
Constitutional Courts may also act as Parens Patriae so as to
meet the ends of justice. But the said exercise of power is not
without limitation. The courts cannot in every and any case invoke
the Parens Patriae doctrine. The said doctrine has to be invoked
only in exceptional cases where the parties before it are either
mentally incompetent or have not come of age and it is proved to
the satisfaction of the court that the said parties have either no
parent/legal guardian or have an abusive or negligent parent/legal
guardian. There is nothing to suggest that she suffers from any
kind of mental incapacity or vulnerability. She was absolutely
categorical in her submissions and unequivocal in the expression
of her choice. [Paras 39, 45, 52] [984-E-F; 986-E-F; 988-G]
SHAFIN JAHAN v. ASOKAN K.M. & ORS.
A
B
C
D
E
F
G
H
960
SUPREME COURT REPORTS
[2018] 4 S.C.R.
Heller v. Doe 509 US 312 (1993); E. (Mrs.) v. Eve
[1986] 2 SCR 388; Secretary, Department of Health
and Community Service v. J.W.B. and S.M.B. [1992]
HCA 15 (MARION'S Case) : (1992) 175 CLR 218;
AC v. OC (a minor) [2014] NSWSC 53; DL v. A Local
Authority and others [2012] 3 All ER 1064; Re: SA
(Vulnerable Adult with Capacity : Marriage) [2005]
EWHC 2942 (FAM); In Re F (Mental Patient:
Sterilisation [1990] 2 AC 1; A Local Authority v. HB,
MB, ML and BL (By their Children's Guardian) [2017]
EWHC 1437 (Fam); A Local Authority v. Y. [2017]
EWHC 968 (Fam) - referred to
3.1 The expression of choice in accord with law is
acceptance of individual identity. Curtailment of that expression
and the ultimate action emanating therefrom on the conceptual
structuralism of obeisance to the societal will destroy the
individualistic entity of a person. The social values and morals
have their space but they are not above the constitutionally
guaranteed freedom. The said freedom is both a constitutional
and a human right. Deprivation of that freedom which is ingrained
in choice on the plea of faith is impermissible. Faith of a person
is intrinsic to his/her meaningful existence. To have the freedom
of faith is essential to his/her autonomy; and it strengthens the
core norms of the Constitution. Choosing a faith is the substratum
of individuality and sans it, the right of choice becomes a shadow.
[Para 53] [989-A-C]
3.2 The duty of the Court is to uphold the right and not to
abridge the sphere of the right unless there is a valid authority of
law. Sans lawful sanction, the centripodal value of liberty should
allow an individual to write his/her script. The individual signature
is the insignia of the concept. In the case at hand, the father in
his own stand and perception may feel that there has been
enormous transgression of his right to protect the interest of his
daughter but his view point or position cannot be allowed to curtail
the fundamental rights of his daughter who, out of her own volition,
married the appellant. Therefore, the High Court has completely
erred by taking upon itself the burden of annulling the marriage
between the appellant and respondent no.9 when both stood
embedded to their vow of matrimony. The impugned order is set
A
B
C
D
E
F
G
H
961
aside, however, the investigation by the NIA in respect of any
matter of criminality may continue in accordance with law. [Paras
54-56] [989-D-H]
Per Dr. D. Y. Chandrachud, J. (Supplementing)
HELD: 1. The ambit of a habeas corpus petition is to trace
an individual who is stated to be missing. Once the individual
appears before the court and asserts that as a major, she or he is
not under illegal confinement, which the court finds to be a free
expression of will, that would conclude the exercise of the
jurisdiction. [Para 14] [996-B]
Gian Devi v. Superintendent, Nari Niketan, Delhi (1976)
3 SCC 234; Girish v. Radhamony K (2009) 16 SCC
360; Lata Singh v. State of U.P. (2006) 5 SCC 475:
2006 (3) Suppl. SCR 350; Bhagwan Dass v. State (NCT
of Delhi) (2011) 6 SCC 396: [2011] 6 SCR 330; Soni
Gerry v. Gerry Douglas (2018) 2 SCC 197; Kanu
Sanyal v District Magistrate, Darjeeling (1973) 2 SCC
674: [1974] 1 SCR 621 - relied on
State of Orissa v. Ram Chandra Dev and Mohan Prasad
Singh Deo AIR (1964) SC 685; Keshav Singh (1965) 1
SCR 413; T K Rangarajan v. Government of T.N. (2003)
6 SCC 581: [2003] 2 Suppl. SCR 251; Roshan Deen v.
Preeti Lal (2002) 1 SCC 100 : [2001] 5 Suppl. SCR
23; Dwarka Nath v. ITO, Special Circle D-ward, Kanpur
[1965] 3 SCR 536; Naresh Shridhar Nirajkar v. State
of Maharashtra [1966] 3 SCR 744; M V Elisabeth v
Harwan Investment and Trading (P) Ltd. 1993 Suppl.
(2) SCC 433 : [1992] 1 SCR 1003 - referred to.
2. The schism between respondent no.9 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 respondent no.9. She has absolute
autonomy over her person. Respondent no.9 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. The High Court
SHAFIN JAHAN v. ASOKAN K.M. & ORS.
A
B
C
D
E
F
G
H
962
SUPREME COURT REPORTS
[2018] 4 S.C.R.
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 respondent no.9, 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 the appellant
only to inform the court of their marriage. How respondent no.9
chooses to lead her life is entirely 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. 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. [Paras 16,
17] [998-D-G]
3. 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. 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 appellant is a fit person for respondent no.9 to marry,
the High Court has entered into prohibited terrain. [Para 19]
[999-C-G]
A
B
C
D
E
F
G
H
963
4. Article 16 of the Universal Declaration of Human Rights
underscores the fundamental importance of marriage as an
incident of human liberty. [Para 20] [999-H]
5. 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. [Para 21]
[1000-C-F]
Justice K. S. Puttaswamy v. Union of India (2017) 10
SCC 1; Common Cause (A Regd. Society) v. Union of
India (2018) 5 SCC 1 - followed
6. 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 Court was of the view that at twenty four,
respondent no.9 "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
SHAFIN JAHAN v. ASOKAN K.M. & ORS.
A
B
C
D
E
F
G
H
964
SUPREME COURT REPORTS
[2018] 4 S.C.R.
justice that has resulted in the High 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. [Para 23] [1001-C-F]
7. Whether or not respondent no.9 chose to marry appellant
was irrelevant to the outcome of the habeas corpus petition. Even
if she were not to be married to him, 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 it could have no bearing on the outcome. [Para
25] [1002-D-E]
8. 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. NIA may exercise its authority in accordance
with the law within the bounds of the authority conferred upon it
by statute. However, the validity of the marriage between
appellant and respondent no.9 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. [Para 26] [1002-E-G]
Case Law Reference
Per Dipak Misra, CJI and A. M. Khanwilkar, J.
[1959] Suppl. SCR 727
referred to
Para 22
[1974] 1 SCR 621
referred to
Para 23
[2011] 13 SCR 185
referred to
Para 25
A
B
C
D
E
F
G
H
965
[1989] 2 Suppl. SCR 597
referred to
Para 34
[2007] 12 SCR 991
referred to
Para 35
[2011] 4 SCR 1057
referred to
Para 38
[1976] 1 SCR 906
referred to
Para 38
[1986] 2 SCR 388
referred to
Para 41
Per D. Y. Chandrachud, J.
AIR (1964) SC 685
referred to
Para 12
[1965] 1 SCR 413
referred to
Para 12
[2003] 2 Suppl. SCR 251
referred to
Para 12
[2001] 5 Suppl. SCR 23
referred to
Para 12
[1965] 3 SCR 536
referred to
Para 12
[1966] 3 SCR 744
referred to
Para 12
[1992] 1 SCR 1003
referred to
Para 12
(1976) 3 SCC 234
relied on
Para 14
(2009) 16 SCC 360
relied on
Para 14
[2006] 3 Suppl. SCR 350
relied on
Para 14
[2011] 6 SCR 330
relied on
Para 14
(2018) 2 SCC 197
relied on
Para 14
[1974] 1 SCR 621
relied on
Para 14
(2017) 10 SCC 1
followed
Para 22
(2018) 5 SCC 1
followed
Para 22
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 366 of 2018.
From the Judgment and Order dated 24.05.2017 of the High Court
of Kerala at Ernakulam in Writ Petition (Crl.) No. 297 of 2016.
Kapil Sibal, Ms. Indira Jaising, Sr. Advs., Haris Beeran, Mushtaq
Salim, Usman Ghani Khan, Dev Prakash, K. P. Mohamad Shareef,
K.C. Naseer, A. Mohamed Yusuf, S. A. S. Alaudeen, M. Abdul Shukoor,
Ms. Pallavi Pratap, Ms. Nehmat Kaur, Advs. for the Appellant.
SHAFIN JAHAN v. ASOKAN K.M. & ORS.
A
B
C
D
E
F
G
H
966
SUPREME COURT REPORTS
[2018] 4 S.C.R.
Maninder Singh, ASG, Shyam Divan, Jaideep Gupta, Sr. Advs.,
Nalin Kohli, R. Balasubramanian, Prabhas Bajaj, Adv. Ankit Roy,
Ms. Nimisha Menon, Akshay Amritanshu, Neel Kamal, B. V. Balaram
Das, P. A. Noor Muhamed, Ms. Giffara S., Bilal Niamathulla, Madhavi
Divan, A. Raghunath, C. Rajendran, M.G. Yogamaya, Ms. Nidhi Khanna,
Ayush Puri, C. K. Sasi, Manukrishnan G., Ms. Nayantara Roy,
Ms. Aishwarya Bhati, T. Gopal, Ms. Vaidruti Mishra, Vishwajeet Singh,
Jaideep Singh, Rakesh Mudgil, Gp. Capt. Karan Singh Bhati, Sayid
Marzook Bafari, Faisal M. Aboobaker, Towseef Ahmad Dar, P. V. Dinesh,
Ms. Swarupama Chaturvedi, Ms. Bhawna Singh Dev, B. N. Dubey,
Advs. for the Respondents.
The Judgments of the Court were delivered by
DIPAK MISRA, CJI [for himself and A. M. Khanwilkar, J.]
Rainbow is described by some as the autograph of the Almighty and
lightning, albeit metaphorically, to be the expression of cruelty of otherwise
equanimous "Nature". Elaborating the comparison in conceptual
essentiality, it can be said that when the liberty of a person is illegally
smothered and strangulated and his/her choice is throttled by the State
or a private person, the signature of life melts and living becomes a bare
subsistence. That is fundamentally an expression of acrimony which
gives indecent burial to the individuality of a person and refuses to
recognize the other's identity. That is reflection of cruelty which the
law does not countenance. 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. The thought itself is a manifestation of the idea of
patriarchal autocracy and possibly self-obsession with the feeling that a
female is a chattel. It is also necessary to add here that the High Court
on some kind of assumption, as the impugned judgment and order would
reflect, has not been appositely guided by the basic rule of the highly
valued writ of habeas corpus and has annulled the marriage. And that is
why the order becomes a sanctuary of errors.
2. On 08.03.2018, this Court had allowed the appeal passing the
following order:-
A
B
C
D
E
F
G
H
967
"Leave granted.
Heard Mr. Kapil Sibal and Ms. Indira Jaising, learned senior
counsel along with Mr. Haris Beeran, learned counsel for the
appellant, Mr. Maninder Singh, learned Additional Solicitor General
for the National Investigation Agency (NIA) and Mr. Shyam
Divan, learned senior counsel along with Ms. Madhavi Divan,
learned counsel for respondent No.1.
The reasoned judgment will follow. The operative part of
the order reads as follows:-
Considering the arguments advanced on both sides, in the
facts of the present case, we hold that the High Court should not
have annulled the marriage between appellant No.1, Shafin Jahan
and respondent No.9, 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.
In view of the aforesaid, the appeal stands allowed. The
judgment and order passed by the High Court is set aside.
Respondent No.9, Hadiya alias Akhila Asokan is at liberty to
pursue her future endeavours according to law. We clarify that
the investigations by the NIA in respect of any matter of
criminality may continue in accordance with law."
3. Presently, we proceed to state the reasons.
4. The facts which are necessary to be stated are that Ms. Akhila
alias Hadiya, respondent No.9 herein, aged about 26 years at present,
the only child of Sh. Asokan K. M., respondent No.1 herein, and Smt.
Ponnamma, had completed a degree in Homeopathic Medicine, BHMS
(Bachelor of Homeopathic Medicine and Surgery) from Shivaraj
Homeopathic Medical College, Salem in Tamil Nadu. While pursuing
the said course, she was initially residing in the college hostel and later
she started staying in a rented house near her college together with five
other students among whom were Jaseena and Faseena, daughters of
one Aboobacker. During the college holidays, Hadiya used to visit the
house of Aboobacker and there was also an occasion when both Jaseena
and Faseena came to reside with Hadiya at the house of Asokan,
respondent No.1 herein. On 6th December, 2015, Hadiya's paternal
SHAFIN JAHAN v. ASOKAN K.M. & ORS.
[DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
968
SUPREME COURT REPORTS
[2018] 4 S.C.R.
grandfather breathed his last. Hadiya on that day came back to her
house and it is alleged that at that time, the family members and relatives
of Asokan noticed some changes in her behaviour as she was showing
reluctance to participate in the rituals performed in connection with the
funeral of her grandfather. Thereafter, she went to Salem for her
internship along with Jaseena and Faseena. Till 5th January, 2016, she
was in constant touch with her family. Thereafter, on the next day, i.e.,
6th January, 2016, Asokan received a telephone call from one of the
friends of Hadiya informing that Hadiya had gone to the college on that
day wearing a 'Pardah'. The respondent No.1 was further informed
that Hadiya was inspired by someone to change her faith.
5. Upon receiving the information, Asokan fell ill. Smt. Ponnamma,
wife of Asokan, called Hadiya and informed her about the illness of her
father. Jaseena and Hadiya left for Salem about 8 p.m. on 6th January,
2016 but Hadiya did not reach her father's house. Later Asokan went in
search of Hadiya and came to know from one Ms. Archana that Hadiya
was living at the house of Aboobacker. Thereupon, Asokan contacted
Aboobacker for meeting his daughter Hadiya. Aboobacker promised
Asokan that he would bring Hadiya to the house of Ms. Archana, a
friend of Hadiya, but this never happened and later Asokan was informed
that Hadiya had escaped from the house of Aboobacker and had run
away somewhere. Disgusted and disgruntled, as he was, Asokan filed a
complaint before S.P. Malapuram District, but as there was no progress
made by the police in the investigation of the matter, Asokan 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.
6. On 14.01.2016, when the case came up for admission, the
Division Bench directed the Government pleader to get instructions
regarding the action, if any, taken on the aforesaid complaint of Asokan.
Thereafter, on 19.01.2016, when the case was taken up for further
consideration, Hadiya appeared through a lawyer and filed an application
for impleadment being I. A. No. 792 of 2016. The said application for
impleadment was allowed and Hadiya was impleaded as a respondent.
An affidavit dated 26.11.2016 was filed on her behalf stating, inter alia,
the facts and circumstances under which she had left her house. The
aforesaid affidavit mentioned that she had communicated to her father
as well as Director General of Police by registered letter regarding the
actual state of affairs. Further, she along with one Sainaba filed Writ
A
B
C
D
E
F
G
H
969
Petition being W.P. (C) No. 1965 of 2016 seeking protection from police
harassment.
7. The Division Bench in W.P. (Criminal) No. 25 of 2016
persuaded Hadiya to go along with her father, Asokan, to her parental
house but the said persuasions were all in vain as Hadiya was not willing
to go with her father. The Division Bench, thereafter, interacted with
Sainaba who expressed her unequivocal willingness to the Division Bench
to accommodate Hadiya in "Satyasarani" institution and that Sainaba
would render all necessary help to Hadiya to pursue her internship in
BHMS degree course. As Hadiya had taken a stand that she wanted to
join Satyasarani and she was not, in any case, willing to go back to her
parental home along with Asokan, the Division Bench permitted Hadiya
to stay with Sainaba at her house till she joined Satyasarani. The Division
Bench thereafter adjourned the case for further hearing directing to
produce proof regarding admission of Hadiya in Satyasarani.
8. The case was taken up for consideration by the Division Bench
where the counsel appearing on behalf of Hadiya produced documents
to show that Hadiya had got admission on 20.01.2016 in an institution,
namely, 'Markazul Hidaya Sathyasarani Educational & Charitable Trust'
at Karuvambram, Manjeri in Malappuram District. The counsel for
Hadiya also submitted before the writ court that Hadiya was staying in
the hostel of the said institution.
9. The Division Bench, vide judgment dated 25.01.2016, directed
as follows:-
"8. Under the above mentioned circumstances, we are convinced
that the alleged detenue is not under any illegal confinement.
She is at present staying in the above said institution on her own
wish and will. She is not under illegal confinement. Therefore,
there exists no circumstances warranting interference for
issuance of any writ of Habeas Corpus. Hence the original petition
is hereby disposed of by recording the fact that the alleged detenue
is staying in the above said institution on her own free will. It will
be left open to the petitioner and her family members to make
visit to her at the above institution, subject to regulations if any
regarding visiting time."
10. In view of the aforesaid order, the writ petition filed by Hadiya
was withdrawn.
SHAFIN JAHAN v. ASOKAN K.M. & ORS.
[DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
970
SUPREME COURT REPORTS
[2018] 4 S.C.R.
11. When the matter stood thus, the 1st respondent filed a second
Writ Petition (Criminal) No. 297 of 2016 alleging that his daughter was
likely to be transported out of the country and the High Court, vide interim
order, directed the respondent to keep her under surveillance and to
ensure that she was not taken out of the country without further orders
of the Court. The averments made by the father in the writ petition need
not be stated in detail. Suffice it to say that Hadiya alias Akhila
categorically declined to go with her parents and stated in the affidavit
filed by her that she was not being permitted to interact with anyone.
Hadiya further stated that she wanted to reside at a place of her choice
and that she had not been issued a passport and, therefore, there was no
likelihood of her being taken to Syria. The High Court, considering the
affidavit, passed the following order:-
"After hearing learned counsel on both sides, we are of the opinion
that in the light of the finding entered by this court in the earlier
round of litigation that this Court cannot compel the petitioner's
daughter to go and reside with her parents and that she is not in
the illegal custody of anyone, this court cannot any longer direct
that the petitioner's daughter should continue to reside at
Santhinikethan Hostel, Pachalam. When we asked the
petitioner's daughter as to whether she is willing to appear on
another day, she submitted that she will appear on the next hearing
date. Learned counsel for the detenue also submitted that the
detenue will be present in person on the next hearing date. We
accordingly permit the detenue to reside at a place of her choice.
We also record the statement of Ms. Akhila that she proposes to
reside with the seventh respondent, Smt. A.S.Sainaba, whose
address is mentioned in the instant writ petition. Sri. P.K.Ibrahim,
learned counsel appearing for the seventh respondent submitted
that the seventh respondent will cause production of the
petitioner's daughter on the next hearing date, if she proposes to
reside with her. If the petitioner's daughter proposes to shift her
residence and to reside elsewhere, we shall inform that fact to
the Deputy Superintendent of Police, Perinthalmanna in writing
and furnish her full residential address and the telephone number
if any over which she can be contacted. Call on 24.10.2016. The
Deputy Superintendent of Police, Perinthalmanna shall cause
production of the petitioner's daughter on that day. It will be
open to the parents of Ms. Akhila to meet and interact with her."
A
B
C
D
E
F
G
H
971
12. On the basis of the aforesaid order passed by the High Court,
Hadiya was permitted to reside with the 7th respondent. On 14.11.2016,
the counsel for the writ petitioner before the High Court expressed serious
apprehension regarding the continued residence of his daughter in the
house of the 7th respondent therein. On 19.12.2016, the High Court noted
that she had not completed her course and acquired competence to
practise homeopathy and, accordingly, expressed the opinion that she
should complete her House Surgeoncy without delay and obtain eligibility
to practice. A statement was made on her behalf that she has 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 the basis of the
aforesaid, the High Court passed the following order:-
"We have heard the learned Senior counsel Sri. S.Sreekumar,
who appears for the detenue. We have perused the affidavit
dated 26.11.2016 filed by the detenue producing documents, Exts.
R8(d) and R8(e). We are not prepared to rely on Ext.R8(d) which
purports to make it clear as though a registered Homeopathic
Medical Practitioner has permitted the detenue to work as a
trainee in Homeopathic Medicine on a remuneration of Rs.2000/
- per month for her day today expenses. We fail to understand
how the detenue, who has not obtained a degree in Homeopathy
can be permitted to train under him. The detenue has admittedly
not completed her House Surgeoncy or obtained eligibility to
practice. Therefore, it is only appropriate that she completes her
House Surgeoncy without further delay and obtains eligibility to
practice Homeopathic Medicine. Her Senior counsel Sri.
S.Sreekumar informs us that, the detenue is desirous of
completing her House Surgeoncy. However, we place on record
our dissatisfaction at the continued residence of the detenue with
the 7th respondent, who is a stranger. The counsel for the petitioner
also expresses anxiety and concern at her continued residence
with the 7th respondent. He is anxious about the safety and well
being of the detenue. His anxiety and concern as the parent of
an only daughter is understandable. Therefore, it is necessary
that the detenue shifts her residence to a more acceptable place,
without further delay. According to the learned Senior counsel
Sri.S.Sreekumar, she has to complete her House Surgeoncy at
the Shivaraj Homeopathic Medical College, Salem. The college
SHAFIN JAHAN v. ASOKAN K.M. & ORS.
[DIPAK MISRA, CJI]
A
B
C
D
E
F
G
H
972
SUPREME COURT REPORTS
[2018] 4 S.C.R.
has a hostel for girl students where she is willing to reside and
complete her House Surgeoncy. The petitioner offers to bear
the expenses for her education and stay at the Medical College
Hostel. He offers to escort her to the Medical College and to
admit her into the Hostel there. The detenue is also, according to
the learned Senior counsel, willing to accompany her.
2. In view of the above, there shall be a direction to the detenue
to appear before this Court at 10.15 a.m. on 21.12.2016. The
petitioner shall also be present in person in Court on the said
date.