Shafin Jahan v. Asokan K.M.

A homeopathy student converted to Islam and married a man of her own choice. Her father used a habeas corpus (a court order to produce a detained person) petition to get the marriage annulled. The High Court held that a woman aged 24 is weak and vulnerable. The Supreme Court gave two opinions with the same result by different constitutional routes. Together they show where habeas corpus ends and an adult's freedom in faith and marriage begins.

Quick Revision

Read the full judgment: Supreme Court of India (sci.gov.in)

Parties

Shafin Jahan — appellant; the man Hadiya married on 19 December 2016. The Kerala High Court annulled the marriage, and he challenged that annulment in the Supreme Court by special leave (permission the Supreme Court gives to hear an appeal).

Asokan K.M. — first respondent; Hadiya's father. He filed two habeas corpus petitions in the Kerala High Court. The first alleged illegal confinement. The second alleged that his daughter was being taken out of the country and forced to convert.

Hadiya alias Akhila Asokan — respondent No. 9; the adult woman at the centre of the case. She was a BHMS student who converted to Islam and married Shafin Jahan. She appeared before both courts several times and said her choices were made freely.

Procedural History

The case went through two rounds in the Kerala High Court and then reached the Supreme Court. Paragraph numbers are given per opinion (Misra, C.J.I. or Chandrachud, J.).

1. Complaint and first petition. Asokan complained to the S.P. Malappuram District. The police made no progress. He filed W.P.(Criminal) No. 25 of 2016 before the Division Bench of the Kerala High Court, saying his daughter was missing (Misra, para 5; Chandrachud, para 6).
2. 14 January 2016. The petition came up for admission. The Division Bench asked the Government pleader for instructions on the action taken on the complaint (Misra, para 6).
3. 19 January 2016. Hadiya appeared through a lawyer and filed an application for impleadment (adding a party), I.A. No. 792 of 2016. It was allowed. The High Court observed that she was not under illegal confinement (Misra, para 6; Chandrachud, para 6).
4. Other filings. An affidavit dated 26 November 2016 was filed for her. She and one Sainaba also filed W.P.(C) No. 1965 of 2016 seeking protection from police harassment (Misra, para 6).
5. Her stay. The Division Bench tried to persuade her to go to her parental house, but she was unwilling. Sainaba said she would accommodate her at the Satyasarani institution and help her finish her internship. The Bench let her stay with Sainaba until she joined it (Misra, para 7). Documents showed she was admitted on 20 January 2016 to Markazul Hidaya Sathyasarani Educational and Charitable Trust, Karuvambram, Manjeri, Malappuram, and was staying in its hostel (Misra, para 8).
6. 25 January 2016. By judgment of this date the Division Bench found her not under illegal confinement and staying there of her own will. It disposed of the petition (Misra, para 9). The writ (a court's formal order) petition she had filed was withdrawn (Misra, para 10).
7. Second petition, W.P.(Criminal) No. 297 of 2016. Nearly seven months later, Asokan filed a fresh petition. It alleged forced conversion and that his daughter was likely to be taken out of India (Chandrachud, para 6). The High Court made an interim order to keep her under surveillance and not let her leave the country. She declined to go with her parents. She said she was not allowed to interact with anyone and had no passport, so there was no likelihood of being taken to Syria. The Court then permitted her to live at a place of her choice and recorded that she proposed to live with Sainaba, the seventh respondent (Misra, para 11).
8. 27 September 2016. Represented by an advocate, she declined to accompany her parents. She complained of thirty five days in court custody without contact with anyone and denied the Syria allegation (Chandrachud, para 7).
9. 24 October and 14 November 2016. The High Court heard the matter. On 14 November the father's counsel voiced apprehension (Misra, para 12; Chandrachud, para 7).
10. 19 December 2016. The High Court said she should complete her House Surgeoncy. It recorded its dissatisfaction at her residence with a stranger and directed her to appear on 21 December 2016. The father offered to bear the expenses and escort her to the Salem college hostel (Misra, para 12). That same day she married Shafin Jahan (see Facts).
11. 21 December 2016. She appeared and said she had married Shafin Jahan. The High Court called the marriage an unexpected event and recorded displeasure and its absolute dissatisfaction. It said it acted under its parens patriae (the State's power to protect those who cannot protect themselves) jurisdiction and that a woman in her twenties is at a vulnerable age. It found the episode shrouded in suspicion (Misra, para 13; Chandrachud, para 7).
12. Interim directions. The High Court placed her in the S.N.V. Sadanam Hostel, Ernakulam, without a mobile phone, and only her parents could meet her. It directed an investigation into Shafin Jahan's background. It directed that the Panchayat Secretary issue no marriage certificate (Misra, para 13; Chandrachud, para 7).
13. 6 January, 31 January, 7 February and 22 February 2017. The High Court kept monitoring the matter (Chandrachud, para 7).
14. 24 May 2017: the impugned judgment. The judgment said a girl aged 24 is weak and vulnerable and that her custody should go to her parents. It declared the marriage a sham and null and void (Misra, para 14; Chandrachud, para 2). It said her marriage, the most important decision in her life, could be taken only with the active involvement of her parents, and that respondent No. 7 and her husband had no authority or competence to act as her guardian and give her in marriage (Misra, para 14). The High Court's principal findings (Chandrachud, para 8):
    • It was an arranged marriage, not a love match, and she had no earlier acquaintance with him.
    • They met on an online portal called Way to Nikah.
    • She had said she wished to complete her studies, and nobody then had a case that she wanted to marry.
    • The marriage took place on 19 December 2016, the day the hearing was adjourned to 21 December.
    • It was a make-believe to take her out of the Court's reach.
    • Marrying without informing the court was unacceptable.
    • There was no document of her conversion, and his Facebook posts showed a radical inclination.
    • No prudent parent would marry a daughter to a person accused in a criminal case.
    It called the marriage a sham of no consequence.
15. Consequential directions. A Sub-Inspector was to escort her to her father's house, with police surveillance. The 4th respondent was to take over Crime No. 21 of 2016 (Perinthalmanna), coordinate with Crime No. 510 of 2016 (Cherpulassery), investigate the organisations involved and inquire into lapses by the Investigating Officer (Misra, para 15). The High Court questioned whether the marriage was a device to transport her out of the country (Misra, para 13). It directed a police investigation into Shafin Jahan's antecedents and alleged extremist links. She stayed in compulsive confinement at her father's home against her will (Chandrachud, para 3).
16. Appeal to the Supreme Court. Shafin Jahan appealed by special leave (SLP (Crl.) No. 5777 of 2017; later Criminal Appeal No. 366 of 2018). Leave was granted (Misra, paras 2, 16).
17. 4 August 2017. The Court asked the Additional Solicitor General to accept notice for the National Investigation Agency (NIA). The NIA came in only at the Supreme Court stage (Misra, para 17).
18. 30 October 2017. The Court directed that Hadiya be produced before it on 27 November 2017 (Misra, para 17; Chandrachud, para 9).
19. 27 November 2017. The Court refused a request to interact with her in camera (privately, not in open court) and spoke to her in open Court, with a senior advocate translating. She wanted to continue her internship/housemanship (expected 11 months) and become a homeopathic doctor. She said she intended to pursue the BHMS course at Salem. The Court directed her admission and hostel stay, with expenses borne by the State of Kerala if necessary. It ensured she could study without obstruction and be treated like any other student. It said the NIA investigation would continue (Misra, para 17; Chandrachud, para 9). Until this date she stayed in confinement at her father's home, and the Court then directed that she be allowed to travel to Salem to study (Chandrachud, para 3).
20. Later affidavit. She filed an affidavit affirming her conversion to Islam and her marriage to Shafin Jahan (Chandrachud, para 10).
21. Final hearing. The appeal was heard finally, and Hadiya is a party (Chandrachud, para 4). The Court found nothing to suggest mental incapacity or vulnerability (Misra, para 52).
22. 8 March 2018: operative order. The three-judge Bench pronounced the operative part and allowed the appeal (Misra, paras 2–3; Chandrachud, para 5).
23. 9 April 2018: reasoned judgment. It has Chief Justice Misra's opinion for himself and Khanwilkar, J., and a separate concurring opinion (a separate opinion agreeing with the result but reasoning differently) by Chandrachud, J. The two opinions are numbered independently.

Facts

1. Akhila Asokan, later known as Hadiya, was the only child of Asokan K.M. and Smt. Ponnamma (Misra, para 4). She was born to parents of the Ezhava Community (Chandrachud, para 6).
2. She was studying for a Bachelor of Homeopathic Medicine and Surgery (BHMS) degree at Shivaraj Homeopathic Medical College, Salem, Tamil Nadu. Misra, C.J.I. describes her as about 26 years old at the time of his opinion. Chandrachud, J. calls her a major of 24 (Misra, para 4; Chandrachud, para 6).
3. She first lived in the college hostel. She later lived in a rented house near the college with five other students, including Jaseena and Faseena, daughters of one Aboobacker. She visited Aboobacker's house in holidays (Misra, para 4).
4. On 6 December 2015 her paternal grandfather died. Relatives noticed she was reluctant to join the funeral rituals (Misra, para 4).
5. She then went to Salem for her internship with Jaseena and Faseena. She stayed in touch with her family until 5 January 2016 (Misra, para 4).
6. On 6 January 2016 a friend told Asokan that she had gone to college wearing a pardah and had been inspired by someone to change her faith. The family alleged that she was being influenced to convert to Islam (Misra, para 4).
7. Asokan fell ill. His wife called Hadiya, who left for Salem about 8 p.m. that day but did not reach her father's house (Misra, para 4).
8. Asokan learned from a Ms. Archana that she was at Aboobacker's house. Aboobacker promised to bring her to Ms. Archana's house but did not. Asokan was later told she had run away (Misra, para 4).
9. From 7 January 2016 she lived at the Sathyasarani Trust in Malappuram, Kerala. She said she had accepted Islam as a faith of choice (Chandrachud, para 6).
10. This led to the first of her father's two habeas corpus (a court order to produce a detained person) petitions (see Procedural History).
11. On 19 December 2016 she married Shafin Jahan in a Nikah ceremony, an Islamic ceremony (Chandrachud, para 7).

Issues Raised

1. Can a High Court, in habeas corpus jurisdiction under Article 226, annul an adult's marriage? The detenue (the person said to be detained) has already appeared and confirmed that she is not under illegal restraint.
2. Can the doctrine of parens patriae be used over a major of sound mind who can make her own decisions? The only ground is that a court thinks she is open to exploitation.
3. Do an adult's choice of faith and choice of spouse fall within personal liberty and autonomy under Article 21, so that neither parental disapproval nor judicial paternalism can override them?
4. How far can a parallel NIA investigation into forced conversion or radicalisation go, when the person said to be affected denies any coercion (unlawful pressure that removes free will)?

Arguments Contended

The reported judgment does not record the appellant's or the NIA's arguments. Counsel are listed only in the operative order. It records the following arguments of Mr Shyam Divan, senior counsel for the first respondent (Asokan K.M.).

Parens patriae over a vulnerable adult (Misra, C.J.I., para 46; para 52): English courts have extended the doctrine to vulnerable adults who have capacity. Their decision-making is impaired by undue influence (using a position of dominance to obtain an unfair advantage). He relied on DL v. A Local Authority [2012] 3 All ER 1064 and Re: SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam). When the major is a vulnerable adult, he said, the High Court under Article 226 can use the doctrine, as it did here.

The High Court's very wide inherent powers (Chandrachud, J., para 12): he stressed the width of the inherent powers of the High Court as a constitutional court.

Fraud on the Court (Chandrachud, J., para 25): he argued that the High Court had to nullify the marriage, which he called a fraud on the Court. This, he said, was part of dealing with conduct that obstructs the administration of justice. Chandrachud, J. was not impressed with this submission (see Court's Reasoning).

Court's Reasoning

The judgment has two opinions that reach the same outcome by different routes. Paragraph numbers follow each opinion's own numbering.

Chief Justice Misra (for himself and Khanwilkar, J.)

1. Noted: The opinion likens liberty to a rainbow and says a person's choice cannot be throttled by the State or a private person. It calls the father obstinate and the idea that a female is a chattel a patriarchal autocracy. (para 1)
2. Noted: The High Court, on assumption, ignored the basic rule of habeas corpus and annulled the marriage. Its order became a sanctuary of errors. (para 1)
3. Noted: The order of 8 March 2018 is reproduced, and the reasons follow. (paras 2–3)
4. Held: The High Court should not have annulled the marriage in a habeas corpus petition under Article 226. Why: Hadiya appeared on 27 November 2017 and admitted her marriage. (paras 2–3)
5. Held: The appeal was allowed, Hadiya was at liberty to pursue her future, and the NIA investigation could continue. (paras 2–3)
6. Noted: The writ (a court's formal order) is a great constitutional privilege and a quick remedy against illegal detention. (para 18)
7. Noted: P. Ramanatha Aiyar's Law Lexicon (1997 Edn.) is cited for the meaning of habeas corpus. It says the ancient writ takes its name from the two mandatory Latin words habeas corpus, and its purpose was to obtain the production of an individual. (para 19)
8. Noted: The Court draws on Cox v. Hakes, Ranjit Singh v. State of Pepsu, Kanu Sanyal v. District Magistrate, Darjeeling and Ummu Sabeena v. State of Kerala. (paras 20–26)
9. Held: The main purpose of the writ is "to see that no one is deprived of his/her liberty without sanction of law". In plain words, the writ only checks that no one is held without legal authority. Once that is clear, the enquiry ends. (para 27)
10. Noted: The Court's role is to see that the detained person is produced, find out their independent choice, and free them from illegal restraint. The position differs where the detention is not illegal. (para 27)
11. Held: If a person's choice does not break any valid legal framework, expressing that choice is a fundamental right under Articles 19 and 21. Once that is clear, the enquiry ends. (para 27)
12. Held: The High Court was misled by a social situation before it and wrongly objected to the marriage. (para 28)
13. Noted: Hadiya had first declined to go with her father and chosen to stay with respondent No. 7, and the High Court had so directed in the first petition. The father's persistence led to a second habeas corpus petition, where Hadiya appeared with the appellant and confirmed the marriage. (para 28)
14. Held: Parental love or concern cannot override an adult's right of choice in marriage. Going with respondent No. 7 does not mean that, as a major, she could not enter into a marital relationship. (para 28)
15. Held: The High Court should have, after hearing her choice, directed that she was free to go where she wished. (para 28)
16. Held: The High Court's remarks on social radicalisation were unnecessary in the writ. (para 29)
17. Noted: If there is criminality anywhere, it is for the law-enforcing agency to act. As long as the detained person has not been booked under law justifying the detention, the Court's duty is to use the writ that protects the constitutional guarantee of freedom. (para 29)
18. Held: The fear that she might be taken abroad was outside the writ's reach. Any future activity must be governed and controlled by the State in accordance with law. (para 30)
19. Noted: Another ground for invalidating the High Court's order was how it invoked parens patriae. In Latin it means parent of the nation. In law it is the State's power to intervene against an abusive or negligent parent, legal guardian or informal caretaker. The State may also act as parent of any child or individual in need of protection. (para 31)
20. Noted: The doctrine began in the United Kingdom in the 13th century. The King, as guardian of the nation, was bound to look after those unable to look after themselves. In modern times the State has taken over that duty. (para 32)
21. Noted: In Thomasset v. Thomasset, Lindley L.J. said that in exercising this jurisdiction, the rights of fathers and legal guardians were always respected, but controlled by considering the child's real welfare, to an extent unknown at common law. (para 32)
22. Noted: Black's Law Dictionary defines parens patriae as the State acting as protector of those unable to care for themselves, and as the doctrine letting a government sue on behalf of a citizen under a legal disability. (para 33)
23. Noted: The Constitution Bench in Charan Lal Sahu v. Union of India described parens patriae as the sovereign's inherent power and duty to protect persons under disability who have no rightful protector, so that citizens unable to assert their own rights are still protected. (para 34)
24. Noted: In Anuj Garg v. Hotel Association of India, the Court examined Section 30 of the Punjab Excise Act, 1914, which barred employing any man under 25 or any woman on premises serving liquor. It held that use of the parens patriae power is not beyond judicial scrutiny. (para 35)
25. Noted: The Court said the power must be judged by its necessity and by weighing any trade-off or adverse impact, and can also be tested on the ground of the right to privacy. Subject to constitutional, statutory and social limits, a citizen should be allowed to live her life on her own terms. (para 36)
26. Noted: It said the tension between autonomy and security is hard to resolve, but called security the more basic value of the two. (para 37)
27. Noted: In Aruna Ramachandra Shanbaug v. Union of India, discussed alongside State of Kerala v. N.M. Thomas (where Mathew, J. held the Court too is "State" under Article 12), the Court held that only the Court, as parens patriae, may decide for an incompetent person unable to decide on withdrawing life support, giving due weight to relatives, next friend and doctors. (para 38)
28. Noted: Constitutional Courts in India use the parens patriae doctrine in child-custody matters, treating the child's welfare as the paramount concern. (para 39)
29. Held: The doctrine is to be used only in exceptional situations. It gives two examples. One is a mentally ill person produced in a habeas corpus petition. The other is a minor girl who has eloped, is produced on her parents' habeas corpus petition and fears for her life in their custody. (para 39)
30. Noted: In Heller v. Doe, the US Supreme Court said the State has a legitimate interest under its parens patriae powers in caring for citizens unable to care for themselves. (para 40)
31. Noted: In E. (Mrs.) v. Eve, the Supreme Court of Canada said the jurisdiction rests on necessity, applies to the mentally incompetent, is broad and undefined in scope, and must be exercised with great and increasing caution for the protected person's benefit alone. (para 41)
32. Noted: In Secretary, Department of Health and Community Service v. J.W.B. and S.M.B., the High Court of Australia said the jurisdiction springs from the Crown's direct responsibility for those who cannot look after themselves, including infants and persons of unsound mind. (para 42)
33. Noted: Deane, J., in the same case, preferred to call it the welfare jurisdiction, guided by what he called the welfare principle. (para 43)
34. Noted: In AC v. OC (a minor), the Supreme Court of New South Wales said the jurisdiction covers minors, the mentally ill and others unable to manage their own affairs, and must be used for the protected person's benefit and best interest. (para 44)
35. Held: The doctrine can be used only in exceptional cases. The parties must be mentally incompetent or not yet adults. It must be proved that they have no parent or legal guardian, or have an abusive or negligent one. (para 45)
36. Noted: The Court records Mr Divan's reliance on DL v. A Local Authority, an elder-abuse case where the parents were assumed to have capacity under the Mental Capacity Act, 2005, but their decision-making was found affected by their son's undue influence and duress. (para 46)
37. Noted: The Court of Appeal in DL held that the parens patriae jurisdiction extends to vulnerable adults who have capacity, relying on Re: SA (Vulnerable Adult with Capacity: Marriage). It noted the great safety net of inherent jurisdiction, a phrase coined by Lord Donaldson and later approved by the House of Lords in In Re F (Mental Patient: Sterilisation). Justice Munby's passage in Re: SA covers constraint, coercion and undue influence. (para 46)
38. Noted: On Article 8 of the European Convention on Human Rights, Justice Munby said using the inherent jurisdiction is compatible with it, if orders made are necessary and proportionate. (para 47)
39. Noted: He also said adults are entitled to be eccentric, unorthodox, obstinate and irrational. (para 48)
40. Noted: Re: SA itself was about protecting an eighteen-year-old from the risk of an unsuitable arranged marriage. (para 49)
41. Noted: In A Local Authority v. HB, MB, ML and BL, the High Court used its inherent jurisdiction to consider protecting children said to be at risk of being taken to Syria for radicalisation, though it dismissed the applications for want of evidence. (para 50)
42. Noted: In A Local Authority v. Y, the High Court (Family Division) used its inherent jurisdiction to protect a young person from radicalisation. (para 51)
43. Held: Those judgments do not apply to this case. The Court spoke to Hadiya and there was "nothing to suggest that she suffers from any kind of mental incapacity or vulnerability." In plain words, nothing showed that she lacked the mental capacity to decide for herself. (para 52)
44. Held: "Faith of a person is intrinsic to his/her meaningful existence." In plain words, a person's faith is part of who they are. Taking away the freedom to choose, on the plea of faith, is not permitted. (para 53)
45. Held: Social values and morals have their own space, but they do not stand above the constitutionally guaranteed freedom. Realising a right matters more than merely granting it. (para 53)
46. Held: Refusing to accept her choice would hurt the constitutional right. (para 54)
47. Held: The father's view cannot be allowed to cut down his daughter's fundamental rights. The High Court completely erred in annulling the marriage. (para 55)
48. Held: The investigation into criminality may continue in accordance with law, but it must not touch the marital status (see Judgement). (para 56)

Justice Chandrachud (separate opinion, numbered independently)

1. Noted: He agrees with the Chief Justice. He writes to express anguish at the miscarriage of justice and to formulate principles, so that rights are not subjugated at the altar of a paternalistic social structure. (para 1)
2. Noted: The High Court erred in jurisdiction and subjected a citizen's liberty and dignity to judicial affront. The months Hadiya lost cannot be brought back. (para 1)
3. Noted: Hadiya is a party, and the appeal was heard finally. (para 4)
4. Noted: The first concern is that the High Court went beyond its jurisdiction. It annulled the marriage in a habeas corpus petition. (para 11)
5. Noted: Mr Divan stressed the width of the High Court's inherent powers. A cited passage says inherent jurisdiction lets a court fulfil itself properly and effectively as a court of law. (para 12)
6. Noted: In Keshav Singh, a seven-judge Bench held that a superior court decides for itself questions about its own jurisdiction. Passages from Halsbury's Laws of England on a superior court's full plenitude of judicial power were cited. (para 12)
7. Noted: The powers of a constitutional court are wide. Citing State of Orissa v. Ram Chandra Dev, he notes that jurisdiction under Article 226 rests on the existence of a right. (para 12)
8. Noted: The High Court has extraordinary jurisdiction to meet unprecedented situations (T.K. Rangarajan v. Government of T.N.). Roshan Deen v. Preeti Lal, Dwarka Nath v. ITO, Naresh Shridhar Nirajkar v. State of Maharashtra and M V Elisabeth v. Harwan Investment and Trading note the High Court's inherent and plenary powers, meant to advance substantial justice. (para 12)
9. Noted: The principles on the wide inherent powers of a constitutional court are well settled. Equally, every exercise of such power must ensure justice under and in accordance with law. (para 13)
10. Held: The petition is meant to trace a person said to be missing. Once an adult comes before the court and says she is not under illegal confinement, the court can check this. If it finds this true, the jurisdiction is over. (para 14)
11. Noted: In Gian Devi v. Superintendent, Nari Niketan, a three-judge Bench held that once a woman is over eighteen, no restriction can be placed on her choice of residence or of the person she stays with. (para 14)
12. Noted: In Girish v. Radhamony K, once a person states before the court that she left of her own free will, the High Court has no further jurisdiction under Article 226. (para 14)
13. Noted: In Lata Singh v. State of U.P., the Court noted the harassment, threats and violence faced by couples who marry outside caste or religion, and directed the police to protect such couples. (para 14)
14. Noted: Bhagwan Dass v. State (NCT of Delhi) called honour killings a reflection of a feudal mindset and a blot on the nation. (para 14)
15. Noted: In Soni Gerry v. Gerry Douglas, a three-judge Bench held that a major is entitled to exercise her own choice, and courts must not assume the role of parens patriae or a super guardian while that choice stands. (para 14)
16. Noted: These principles trace back to the Constitution Bench decision in Kanu Sanyal v. District Magistrate, Darjeeling. (para 14)
17. Noted: In the first petition the High Court had noted that Hadiya was unwilling to return to her parental home. The petition was withdrawn on 25 January 2016. (para 15)
18. Noted: On the second petition the Division Bench gave little weight to that outcome. It also gave little weight to the decision of a coordinate Bench (a Bench of equal rank). It left the course adopted earlier. (para 15)
19. Noted: The schism between Hadiya and her father may be unfortunate. It was no part of the High Court's jurisdiction to decide what was a "just" way of life for her. She has absolute autonomy over her person. (para 16)
20. Held: Hadiya appeared and stated she was not under illegal confinement. There was no warrant for the High Court to proceed further. The purpose of the habeas corpus petition had ended and it should have been closed. (para 16)
21. Held: The High Court entered a domain alien to its jurisdiction in a habeas corpus petition. (para 16)
22. Held: The High Court's view that she lacked candour has no bearing on whether her marriage is legal or on her right to decide whom to live with or marry. (para 16)
23. Held: Declaring the marriage null and void in a habeas corpus petition goes beyond judicial power. (para 17)
24. Noted: Hadiya and Shafin Jahan are adults. Under Muslim law marriage (Nikah) is a contract, and the right of adults to marry by their own free will is recognised. (para 18)
25. Noted: The conditions for a valid Muslim marriage are:
    • Both individuals must profess Islam.
    • Both must have attained puberty.
    • There must be an offer and acceptance, with two witnesses present.
    • Dower (Mehar) must be fixed.
    • There must be no prohibited degree of relationship.
    (para 18)
26. Held: A marriage can be dissolved, at the parties' wish, only by a competent court. Depriving marital status is a serious matter and must strictly follow the law. The High Court should not have annulled the marriage under Article 226. (para 19)
27. Held: The choice of a partner lies within each individual's exclusive domain. Intimacies of marriage lie within a core zone of privacy that is inviolable. (para 19)
28. Noted: The Constitution guarantees every person the right freely to practise, profess and propagate religion. The right to choose a life partner is not affected by matters of faith. (para 19)
29. Held: "Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme". In plain words, on faith and marriage the individual's own choice comes first. (para 19)
30. Held: Neither the State nor the law can dictate the choice of a partner. The High Court entered prohibited terrain in deciding whether Shafin Jahan was a fit match for Hadiya. (para 19)
31. Noted: Article 16 of the Universal Declaration of Human Rights treats marriage as part of human liberty: adults have the right to marry and found a family with free and full consent. (para 20)
32. Held: "The right to marry a person of one's choice is integral to Article 21 of the Constitution". In plain words, choosing whom to marry is part of the right to life and liberty. (para 21)
33. Noted: Para 21 also lists dress and food, ideas and ideologies, and love and partnership among the central aspects of identity. (para 21)
34. Held: Law may regulate the conditions of a valid marriage and how a marital tie is ended or annulled, but those remedies belong to the parties. Society has no role in choosing our partners. (para 21)
35. Noted: The nine-judge Bench in Justice K.S. Puttaswamy v. Union of India held that the ability to decide on matters close to one's life is an inviolable part of the human personality. (para 22)
36. Noted: A Constitution Bench in Common Cause v. Union of India held that our autonomy rests on deciding what to wear and eat, what to speak, what to believe, and whom to love and partner with. (para 22)
37. Held: The Constitution gives every individual a protected right to choose the partner with whom to share intimacies, within or outside marriage. (para 22)
38. Held: The High Court entered a private space in which neither law nor judges can intrude. (para 23)
39. Held: Superior courts use parens patriae for persons who cannot assert a free will, such as minors or persons of unsound mind. It must not extend to deciding whether partners suit each other for a marital tie. (para 23)
40. Noted: The Court was equally concerned about the miscarriage of justice and about the paternalism in the High Court's approach. Choosing a marital partner belongs to individuals alone; neither the State nor society may intrude. (para 23)
41. Noted: The Constitution's strength lies in accepting the plurality and diversity of our culture, and courts must not swerve from upholding that pluralism. (para 23)
42. Noted: State interference in such matters discourages others from using their liberties. This is the chilling effect. (para 24)
43. Held: He rejects Mr Divan's fraud on the Court submission. Whether Hadiya married had no bearing on the outcome of the habeas corpus petition. Why: she only had to clarify whether she was in illegal confinement. Her marriage during the proceedings could have no constitutional bearing on that outcome. (para 25)
44. Held: The NIA may act within its statutory authority, but the validity of the marriage shall not form the subject matter of the investigation. Nothing in the interim order lets the investigating agency interfere in the lives the young couple seeks to lead as law-abiding citizens. (para 26)
45. Held: The appeal stands allowed, and the High Court judgment is set aside. (para 27)

Authorities

• Cox v. Hakes ((1890) 15 AC 506): quoted on habeas corpus as a safeguard of liberty (Misra, para 20).
• Secretary of State for Home Affairs v. O’Brien ([1923] AC 603): quoted; the writ is a swift and imperative remedy against illegal restraint (Misra, para 21).
• Ranjit Singh v. State of Pepsu (AIR 1959 SC 843): proceedings for the writ must be expeditious and simple; it quotes Greene v. Secy. of States for Home Affairs ([1942] AC 284) (Misra, para 22).
• Kanu Sanyal v. District Magistrate, Darjeeling ((1973) 2 SCC 674): Constitution Bench; the writ is procedural; history of the writ (Misra, paras 23–24). Called fundamental to the principles in Chandrachud, para 14.
• Ware v. Sanders (146 Iowa 233) and Ummu Sabeena v. State of Kerala ((2011) 10 SCC 781): the writ is to be applied liberally, and judges must safeguard liberty (Misra, paras 25–26).
• Charan Lal Sahu v. Union of India ((1990) 1 SCC 613): parens patriae as the State's power over persons under disability (Misra, para 34).
• Anuj Garg and Others v. Hotel Association of India ((2008) 3 SCC 1): parens patriae is subject to scrutiny and to privacy; a citizen should live her life on her own terms (Misra, paras 35–37).
• Aruna Ramachandra Shanbaug v. Union of India ((2011) 4 SCC 454), citing State of Kerala v. N.M. Thomas: the Court acts as parens patriae for an incompetent person (Misra, para 38).
• Department of Health and Community Services v. JWB and SMB: parens patriae authority discussed (Misra, paras 42–43).
• A Local Authority v. HB, MB, ML and BL ([2017] EWHC 1437 (Fam)): English decision on protecting young persons from radicalisation (Misra, para 50).
• State of Orissa v. Ram Chandra Dev and Mohan Prasad Singh Deo (AIR 1964 SC 685): Article 226 jurisdiction is wide but rests on the existence of a right (Chandrachud, para 12).
• Dwarka Nath v. ITO ((1965) 3 SCR 536) and M V Elisabeth v. Harwan Investment and Trading (P) Ltd. (1993 Supp. (2) SCC 433): cited with other decisions on the inherent and plenary powers of the High Court (Chandrachud, para 12).
• Gian Devi v. Superintendent, Nari Niketan, Delhi ((1976) 3 SCC 234): a major's choice of where to stay and with whom cannot be fettered (Chandrachud, para 14).
• Thomasset v. Thomasset ([1894] P 295): Lindley L.J. on respecting but controlling parental rights by the child's real welfare (Misra, para 32).
• Black's Law Dictionary: definitions of parens patriae (Misra, para 33).
• City of Cleburne v. Cleburne Living Center (473 US 432): cited within the Anuj Garg passage on scrutiny of parens patriae power (Misra, para 35).
• State of Kerala v. N.M. Thomas ((1976) 2 SCC 310): Mathew J. said the Court is also State under Article 12 (Misra, para 38).
• Heller v. Doe (509 US 312 (1993)): State's parens patriae interest in caring for those unable to care for themselves (Misra, para 40).
• E. (Mrs.) v. Eve ([1986] 2 SCR 388): jurisdiction founded on necessity, used for the benefit of the person protected (Misra, para 41).
• AC v. OC (a minor) ([2014] NSWSC 53): jurisdiction covers minors, the mentally ill and those unable to manage their affairs (Misra, para 44).
• DL v. A Local Authority ([2012] 3 All ER 1064) and Re: SA (Vulnerable Adult with Capacity: Marriage) ([2005] EWHC 2942 (Fam)): relied on by Mr Divan; held not applicable (Misra, paras 46-49, 52).
• In Re F (Mental Patient: Sterilisation) ([1990] 2 AC 1): House of Lords approved the phrase great safety net (Misra, para 46).
• A Local Authority v. Y ([2017] EWHC 968 (Fam)): inherent jurisdiction used to protect a young person from radicalization (Misra, para 51).
• Girish v. Radhamony K ((2009) 16 SCC 360): no further jurisdiction once she said she went of her own free will (Chandrachud, para 14).
• Lata Singh v. State of U.P. ((2006) 5 SCC 475): a major may marry whom they like; police to protect such couples (Chandrachud, para 14).
• Bhagwan Dass v. State (NCT of Delhi) ((2011) 6 SCC 396): honour killings are a feudal slur on the nation (Chandrachud, para 14).
• Soni Gerry v. Gerry Douglas ((2018) 2 SCC 197): courts cannot assume the role of parens patriae over a major's choice (Chandrachud, para 14).
• Justice K S Puttaswamy v. Union of India ((2017) 10 SCC 1): nine-judge Bench on autonomy and decision-making (Chandrachud, para 22).
• Common Cause v. Union of India (Writ Petition (Civil) No. 215 of 2005, Constitution Bench): autonomy rests on the ability to decide (Chandrachud, para 22).
• T K Rangarajan v. Government of T.N. ((2003) 6 SCC 581), Roshan Deen v. Preeti Lal ((2002) 1 SCC 100) and Naresh Shridhar Nirajkar v. State of Maharashtra ((1966) 3 SCR 744): extraordinary, inherent and plenary powers of the High Court (Chandrachud, para 12).
• Keshav Singh ((1965) 1 SCR 413): a seven-judge Bench held that a superior court decides for itself questions about its own jurisdiction (Chandrachud, para 12).
• Halsbury's Laws of England: quoted on the full plenitude of a superior court's judicial power and on inherent jurisdiction (Chandrachud, para 12).

Provisions mentioned

• Article 19: the freedoms guaranteed to citizens. Misra, C.J.I. says the expression of choice is a fundamental right under Articles 19 and 21 if it does not transgress a valid legal framework (para 27).
• Article 21: no one may be deprived of life or personal liberty except by a fair, just and reasonable law. Chandrachud, J. holds the right to marry a person of one's choice is integral to it (para 21).
• Article 226: the High Court's power to issue writs, wide but resting on the existence of a right (Chandrachud, para 12).
• Article 12: defines State; mentioned in the reference to N.M. Thomas that a Court is also State (Misra, para 38).
• Section 30, Punjab Excise Act, 1914: prohibited employing any man under 25 or any woman in premises where liquor is consumed. Its validity was tested in Anuj Garg (Misra, para 35).
• Article 16, Universal Declaration of Human Rights: men and women of full age have the right to marry and found a family, with free and full consent (Chandrachud, para 20).
• Mental Capacity Act, 2005: the English Act under which the parents in DL were assumed to have capacity (Misra, para 46).
• Article 8, European Convention on Human Rights: respect for private and family life; interference must be necessary and proportionate (Misra, para 47).
• Right to practise, profess and propagate religion: guaranteed to each individual; it does not affect the right to choose a life partner (Chandrachud, para 19).

Judgement

1. The appeal is allowed, and the Kerala High Court's judgment and order annulling the marriage are set aside (Misra, paras 2, 56; Chandrachud, para 27).
2. Hadiya alias Akhila Asokan is at liberty to pursue her future endeavours according to law (Misra, para 2).
3. The NIA's investigations in respect of any matter of criminality may continue in accordance with law (Misra, paras 2, 56).
4. Misra, C.J.I. added: "The investigation should not encroach upon their marital status." In plain words, the NIA may investigate crime but must not interfere with the marriage (Misra, para 56).
5. Chandrachud, J. clarified that the NIA may act within its statutory authority, but the validity of the marriage shall not form the subject matter of the investigation. Nothing in the interim order empowers the agency to interfere in the lives the young couple seeks to lead as law abiding citizens (Chandrachud, para 26).
6. The judgment records no order on costs.

Legal Principle / Ratio

Habeas corpus jurisdiction ends once the detenue, being an adult, appears before the court and confirms that she is not under illegal restraint. It cannot be stretched into an inquiry that annuls her marriage. Parens patriae applies only to persons who cannot actually exercise free will, such as minors or persons of unsound mind. It cannot be used over an adult with capacity merely because her choices are seen as unwise, unconventional, or made at a vulnerable age. An adult's choice of faith and choice of spouse fall within personal liberty and privacy under Article 21. Neither the State nor the courts may replace that choice with their own judgment.

Subsequent Treatment

Two later Supreme Court judgments refer to this case. Each is described only as its own text states.

Nandakumar v. State of Kerala — Criminal Appeal No. 597 of 2018 (arising out of SLP (Crl.) No. 4488 of 2017); Supreme Court of India; A.K. Sikri and Ashok Bhushan, JJ.; 20 April 2018. The judgment does not number its paragraphs, so no paragraph numbers are given.

• Facts: Thushara's father filed a habeas corpus petition in the Kerala High Court. She was 19 and had married the appellant. The High Court held the marriage invalid because the appellant was under 21, and it gave her custody to her father.
• Use of this case: the Court cites Shafin Jahan v. Asokan K.M. as a recent judgment that states the law on the writ of habeas corpus. It calls the writ a great constitutional privilege and the first security of civil liberty.
• Extracts: the Court reproduces passages from the opinion of Misra, C.J.I. These cover the purpose of the writ, the High Court's error in that case, and the point that faith is part of a person's meaningful existence. It also reproduces the passage of the concurring opinion of Chandrachud, J. that discusses Soni Gerry v. Gerry Douglas, where a major's choice was held to be hers to make.
• Marriage not void: the Court held that a marriage is not void merely because the groom was under 21. Under the Hindu Marriage Act, 1955 it is at most voidable (valid until a court annuls it). The Court cites sections 5 and 12 of that Act.
• Right to live together: both were adults. Even if they were not competent to marry, the Court held that they have the right to live together outside wedlock. It notes that live-in relationships are recognised under the Protection of Women from Domestic Violence Act, 2005.
• Result: the Court allowed the appeal and set aside the High Court's judgment. It made clear that the freedom of choice about whom to live with was Thushara's.

Laxmibai Chandaragi B v. State of Karnataka — Writ Petition [Criminal] No. 359/2020; Supreme Court of India (Original Jurisdiction); Sanjay Kishan Kaul and Hrishikesh Roy, JJ.; 8 February 2021.

• Facts: a woman and a man, both adults, married. Her father had lodged a missing-person complaint. The investigating officer pressed her to come to the police station and hinted at a case against her husband (paras 2–7).
• Use of this case: the Court says this Court in Shafin Jahan noticed that society was going through a crucial period of change. It records that the intimacies of marriage lie within a core zone of privacy, which is inviolable, and that matters of faith would have the least effect on them (para 11).
• Article 21: the Court records that Shafin Jahan held the right to marry a person of choice to be integral to Article 21 (para 11). It also refers to the nine-judge decision in Justice K.S. Puttaswamy v. Union of India, on autonomy in family and marriage as part of an individual's dignity (para 11).
• Result: the Court quashed (set aside) the proceedings on the missing-person FIR (para 14). It also asked the police authorities to frame guidelines and training programmes for such cases within eight weeks (para 13).

Other later cases (not summarized): Devu G. Nair v. State of Kerala, 2024 INSC 228 (Supreme Court of India, decided 11 March 2024). The judgment file could not be fetched, so it is only named here.

Critical Analysis

Analysis based on the judgment text.

The vulnerable-adult point is recorded but not resolved. Mr Divan relied on English authorities on the vulnerable adult with capacity, including Justice Munby's passage in Re: SA on constraint, coercion, undue influence (para 46). The Court records further English decisions in paras 47–51. In para 52 it finds those judgments not applicable on the facts, because it had spoken to Hadiya and nothing suggested incapacity or vulnerability. Its own test in para 45 is narrower. It requires mental incompetence or minority, together with the absence of a parent or guardian or the presence of an abusive or negligent one. The Court neither adopts nor expressly rejects the English category, so its status in Indian law is left open.

The two opinions state the parens patriae limit differently. Chief Justice Misra (para 45) requires two things. The parties must be mentally incompetent or not yet adults, and they must have no parent or legal guardian or have an abusive or negligent one. Justice Chandrachud (para 23 of his opinion) confines the doctrine to persons who cannot assert a free will, such as minors or persons of unsound mind. He adds nothing about the quality of guardianship. Both formulations give the same result on these facts. But a future case of an adult with capacity and an abusive guardian might be decided differently, depending on which formulation a court follows.

The boundary around the NIA investigation is general. Both opinions let the NIA investigation continue but keep it away from marital status (para 56, Misra, C.J.I.; para 26, Chandrachud, J.). Neither opinion says which investigative steps would amount to encroachment. The restriction is defined by its outer limit, marital validity. It does not say what investigative conduct remains permissible.

Significance

Shafin Jahan v. Asokan K.M. sets two constitutional limits that had not been drawn precisely in this factual setting. First, habeas corpus jurisdiction under Article 226 ends the moment an adult detenue appears and confirms that she is not under illegal restraint. The writ cannot be stretched to decide her marriage or control where she lives. Second, parens patriae cannot be used over an adult with capacity on the ground that the court thinks she is vulnerable. The doctrine is available only for persons who actually cannot exercise free will, such as minors or those of unsound mind.

Justice Chandrachud's separate opinion bases the right to choose a spouse expressly on Article 21. It builds on the nine-judge privacy ruling in Justice K.S. Puttaswamy v. Union of India, 2017 (10) SCC 1, cited and quoted in the judgment (para 22 of Chandrachud, J.). In paras 19 and 21 he treats choices of faith and belief, like choices in marriage, as matters of individual autonomy. Chief Justice Misra supports this at para 53. He describes faith as intrinsic to a person's meaningful existence and freedom of faith as essential to autonomy.

Justice Chandrachud makes a further point (para 24): State interference in such matters has a chilling effect on the use of freedoms. This shows that adult autonomy in intimate matters is not only an individual right but also a structural concern. Judicial over-reach in one case discourages others in similar situations from asserting the same freedoms.

Exam-Important Points

• Facts in one line: a woman converted to Islam and married a man of her choice. Her father's habeas corpus petition led the Kerala High Court to annul the marriage, invoking parens patriae over her as a 24-year-old adult. The Supreme Court reversed this.
• Two full rounds before the Kerala High Court, not one: W.P.(Crl.) 25/2016 (disposed 25 January 2016, no illegal confinement found) and W.P.(Crl.) 297/2016 (marriage-annulling judgment of 24 May 2017). Treating this as a single habeas corpus petition is a common error.
• Two opinions, not one voice: Misra, C.J.I. (for himself and Khanwilkar, J.) decides the parens patriae issue in steps. The steps are: the origin of the doctrine and Indian decisions (paras 32–39); US, Canadian and Australian authority (paras 40–44); the limit in para 45; Mr Divan's English authorities (para 46); more passages of Re: SA (paras 47–49); and two later English decisions (paras 50–51). The last step is their application to the facts (para 52). Chandrachud, J.'s separate concurrence rests the result on Article 21/Puttaswamy privacy (paras 19–23). Know which opinion a given quotation comes from.
• Holding: habeas corpus jurisdiction ends once the adult detenue confirms she is not illegally restrained. Parens patriae cannot be used over an adult with capacity. Choice of faith and spouse is protected under Article 21 privacy and autonomy.
• Classic exam trap: the Court did not quash the NIA investigation. The NIA probe into criminality was allowed to continue and was only barred from encroaching on marital status (para 56, Misra, C.J.I.; para 26, Chandrachud, J.).
• Chandrachud, J. (para 14) discusses Lata Singh v. State of U.P. (2006) 5 SCC 475, on the freedom of a major to marry whom he or she likes. He also discusses Soni Gerry v. Gerry Douglas (2018) 2 SCC 197, on courts not taking the role of parens patriae while the choice of a major remains. These are the earlier authorities on adult autonomy cited in his opinion.
• The vulnerable adult with capacity argument, drawn from Re: SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), was raised by the respondent's senior counsel (para 46). The English authorities are recorded in paras 46–51, and the Court held them not applicable on the facts (para 52). It neither adopts nor expressly rejects the English category. Its own test is in para 45.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.