SHAFIN JAHAN VS ASOKAN K.M.

, 8th MARCH, 2018

CRIMINAL APPEAL NO. 366 OF 2018
(Arising out of S.L.P. (Crl.) No. 5777 of 2017)

FACTS:
Hadiya Jahan, known initially as Akhila Ashokan, was a Hindu. She converted her religion into Islam
when studying Homeopathy (BHMS) from Shivraj Homeopathic Medical College, Salem in
Coimbatore, Tamil Nadu. She stayed in a house with her friends named Jaseena and Faseena. She
then married a Muslim man named Shafin Jahan at twenty-five years. On 6th January 2016, Mr.
Ashokan, father of Hadiya, found that someone inspired her daughter to change her religion from
Hindu to Muslim. After finding out about her daughter's marriage, Mr. Ashokan filed a police
complaint before S.P. Malappuram District. He then moved to the High court and filed a habeas
corpus petition challenging the validity of the marriage on the ground of misleading and
forcing his daughter to become a Muslim. 

The divisional bench of the High Court rejected the petition and stated that Hadiya has
expressly affirmed her marriage to Sahfin Jahan and conversion to Islam. Hadiya appeared
before the High Court and stated that she had accepted Islam as a religion of choice and
settled at the establishment of Sathyasarani Education Charitable Trust at Mallapuram. So,
the High Court observed that Hadiya was not wrongfully confined by  Sahfin Jahan, and she
has free will to do so. The Kerala High Court held that the marriage between Hadiya and
Sahfin Jahan is only a sham and is of no consequence.” After seven months, Ashokan filed
another writ (habeas corpus) petition before the High court alleging that his daughter had
been forcefully converted into Islam and was likely to be transported out of the country. The
High Court ruled in favor of Mr. Ashokan held that it is the father’s responsibility to keep
custody of his daughter until she realizes her actions. The court exercised the parens patriae
jurisdiction and mentioned that it is for the child's welfare of such an age. The court also
stated that a girl aged 24 years might be exploited as they are weak and vulnerable.
Therefore, the court declared the marriage null and void and allowed the custody of Hadiya to
her parents, although Hadiya did not consent to it.

ISSUES RAISED
 1. Whether the High Court has the power under Article 226 of the Constitution of India to
annul and void the marriage of an adult?

2. Whether the petitioner had a right cause to file a writ petition of Habeas Corpus
before the High Court?

3. Was a National Investigating Agency probe ordered by the Kerala High Court
necessary?

4. Whether women or men have to take prior approval from their parents if they are
above the age of eighteen and twenty-one, respectively?

CONTENTION
The High Court has a power granted by the Constitution of India under Article 226, for
enforcing the rights guaranteed under Part-III of the Indian Constitution and for any other
reason as the case may be. He has argued that the High Court has immense power to annul
the marriage if the court is stratified that the solemnization of marriage takes place under
unreasonable and suspicious circumstances. The commentary of D.D. Basu on Halsbury’s
Laws of England stated about the power of High Court to grant the writ of Habeas Corpus
that “The writ of Habeas Corpus Ad Subjiciendum” unlike any other writs, is a prerogative
writ and used in extraordinary remedies where the legal ordinary remedies are inadequate.
The writ of Habeas Corpus can only be granted under reasonable circumstances and issues of
the case.In the case of Ummu Sabeena v. State of Kerala and Others 1It was held that the
principle of Habeas Corpus was formulated to protect the liberty of an individual and provide
immense powers to the courts to exercise it in the most effective manner and to ensure
justice. 

1
Ummu Sabeena v. State of Kerala and Others, (2011)
RATIONALE

Mr. K.M. Ashokan filed another Habeas Corpus writ petition before Kerala High Court to
prevent her daughter Hadiya and Shafin Jahan from leaving India and seeking custody of her
daughter. It was allegedly filed the case based on ‘love jihad.’ He filed the petition to prevent
her daughter from illegal conversion and leave the country as her father's locus stand. The
High court accepted her father's arguments and held that the girl of 24 years is weak and
capable of being exploited by other people. They are vulnerable, and their parents' active
involvement is needed for making important decisions in her life. The court further applied
the principle of the Parens Patriae jurisdiction and observed that it was concerned with the
life and welfare of Hadiya at this age and granted the custody of Hadiya to her parents for the
welfare and beneficial purposes. The Kerala High Court also stated that solemnization
marriage is considered the most crucial life decision. It should take the active involvement of
parents to solemnize it. The marriage between Hadiya and Shafin Jahan is a sham and is of no
consequence in the eyes of the law. The High Court annulled and voided the marriage and
gave Hadiya custody to her parents for her welfare. It is a well-established principle that
courts can exercise Parens Patriae jurisdiction. Still, the power has a specific limitation as
this doctrine limits the decision-making autonomy of living parents vis-à-vis their children,
which has to be kept in mind, and courts cannot invoke this doctrine in every case.

Aggrieved by the order of the Kerala High Court, Shafin Jahan challenged the decision of the
High Court in the Supreme Court. In its interim order by Justice D.Y. Chandrachud, the
Supreme Court stated that it did not justify the decision taken by the High Court in the matter
of marriage of Hadiya in the eyes of the law. It observed her that the actions of the High
Court bench had utilized its inherent powers above its judicial powers. The court further
observed that the jurisdiction of the High Court to annul the marriage in the writ petition of
Habeas Corpus over the case ends when someone, for who filed the writ of Habeas Corpus. It
stands before the court of law to do as they please. it indicates their free will, which is also
protected under the constitution of India. Thus, the High Court must protect those
fundamental rights conferred under the Constitution of India. The action of the High Court to
annul a marriage between Hadiya and Shafin Jahan was against the provisions of the
constitution of India.

The issue framed by the Supreme Court raised concerns over the necessity for a Central level
investigation in the case. In 2017, the Apex Court directed the officials to probe the case by
the National Investigation Agency to know whether this case involved a bigger conspiracy or
an isolated one. The Apex took the reference of Bharati Tamang v. Union of India2,which
defines the principles to promote and ensure effective conduct of prosecution by the court of
law. The courts give a wide range of powers to prevent the miscarriage of justice. Thus,
courts can order to probe the case through the National Investigation Agency if necessary.
Therefore, it was observed by the Apex Court that High Courts have powers to grant an order
for investigation where a case is complex and involves a suspicious chain of events. The
debate on the issue of ‘love jihad’ is politically and socially motivated with malicious
motives. The Indian Laws, in fact, promotes the concept of inter-caste marriages or ‘“Love
Jihad.” The Special Marriage Act3 “was formulated to govern inter-caste marriages in India.
Thus, it is extraordinary that the Kerala High Court was convinced in the first place by the
statement given by the girl and boy. Further, the view of the Kerala High Court held that
“marriage is a significant decision and must be taken along with the parents” was vague and
erroneous by the Apex Court. It is not the case of undue influence on the girl. Hence, it was
erred by the High Court decision to annul the marriage and give custody to her parents and
against the introductory provisions of the Constitution of India.

Therefore, the Supreme Court passed the ruling in favor of Shafin Jahan and held that the
marriage was a valid one and she did not need any consent from her parents as she attained
the age of majority.

DEFECTS OF LAW

2
Bharati Tamang v. Union of India, (2013) 15 SCC 578
3
The Special Marriage Act, 1954
In this present case of Shafin Jahan v. K. M. Ashokan, the Kerala High Court rejected the
initial petition because her daughter Hadiya affirmed did the marriage and her conversion to
Islam willingly without any form of coercion.

INFERENCE
Terming the case of Shafin Jahan v. K.M. Ashokan as the appropriate example of “patriarchal
autocracy and possibly self-obsession with the feeling that a female is a chattel”. The
judgment of the Kerala High Court reflects the patriarchal system in the society which is a
slur on the nation. The judgment showed that women are vulnerable in society. Thus, the
Supreme Court rightly quashed the order of the High Court and passed the judgment in the
favour of Hadiya where she has freedom of choice of religion and faith. Moreover, the
conversion was valid, and the validity of the marriage cannot be decided by the court of law
if parties have attained the age of majority. 

Every person has the right to marry and enter into a legal contract if he/she attains the age of
majority without any interference from parents. The right to marry is not expressly mentioned
under the Indian Constitution but it is interpreted under Article 21 which provides for the
right to life and personal liberty. Thus, the marriage between Hadiya and Shafin Jahan was
valid and the High Court decision to annul it was bad in the eyes of the law. 

NAME – TANIMA ROY

COLLEGE – AMITY UNIVERSITY, KOLKATA