New Delhi: The Supreme Court on Monday held that Hadiya's choice to marry Shafin Jahan of Islamic faith cannot be curtailed merely because she converted to Islam or because of her father's right to protect her in society's interest. A three-judge Bench of Chief Justice Dipak Misra and Justices A.M. Kanwilkar and D.Y. Chandrchud had on March 8 by an interim order set aside the Kerala High Court judgment annulling Hadiya's marriage and had said it would give detailed reasons later. Accordingly on Monday, the Bench gave its verdict with CJI and Justice Kanwilkar giving one verdict and Justice Chandrachud giving a separate but concurring judgment.
The CJI said it is obligatory that expression of choice in accord with law is an acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the society 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.
Non acceptance of Hadiya's choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived. 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. abridge the sphere of the right unless there is a valid authority of law. The court said 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 Shafin Jahan.
On the High Court annulling the marriage, the CJI said the High Court has completely erred by taking upon itself the burden of annulling the marriage between the appellant and Hadiya when both stood embedded to their vow of matrimony. When her choice is strangulated by the State or a private person that is fundamentally an expression of acrimony which gives indecent burial to the individuality of a person and refuses to recognize other's identity.
The High Court has been erroneously guided by some kind of social phenomenon that was frescoed before it. When Haidya had declined to go with her father and expressed her desire to stay with her husband in the High Court the matter ought to have been given a quietus. The High Court cannot in a habeas corpus jurisdiction annul the marriage. The High Court further erred by reflecting upon the social radicalisation and certain other aspects. In a habeas corpus petition, it was absolutely unnecessary. to go into that aspect.
If there was any criminality in any sphere, it is for the law enforcing agency to do the needful but as long as the detenue 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. The approach of the High court on the said score is wholly fallacious, the court said and allowed Shafin Jahan's appeal. It gave liberty to the NIA to probe any criminal angle but it should not encroach upon their marital status.
