Facts Of The Case:
- Hadiya is a girl born in Ezhava Community.
- She adopted Islam as a faith of her choice.
- In 2016 her father instituted a habeas corpus petition in Kerala High
- That time Hadiya was 24-Year-old She was pursuing a course leading up to
degree in homeopathic medicine and surgery in Salem In Tamil Nādu
- During proceedings Hadiya appeared before Kerala High Court accepted
that she had accepted Islam as a faith of choice.
- From 7-01-2016 Hadiya resided at establishment of Sathyasarani education
charitable Trust at Malappuram, In regard of this writ petition On
25-01-2016 Kerala High Court come to know that Hadiya was not under illegal
confinement after interacting with her.
- Then High Court Permitted Hadiya to reside at Sathyasarani education
- Again After 7 months her father filed a writ petition In nature of
Habeas Corpus alleging that had been subjected to force conversion and was
likely to be transported out of India.
- Again, High court after interrogation permitted Hadiya to reside at
- On 21-12-2016 High Court was informed that Hadiya entered into a
Marriage on 19-12-2016 with Shafin Jahan.
- High Court declare Marriage as null and void.
- Shafin Jahan the High Court judgement in Supreme Court and # Judge bench
constituted to hear the case
- Majority opinion given by J Dipak Mishra, J khanwilkar and Concurring
opinion given by J Chandrachud.
- No one gives the dissenting opinion.
- This matter was heard by NIA not their marriage issue but on allegation
of Hadiya father that she would be transported to Syria.
Citation: Criminal Appeal No. 366 Of 2018
Case Name: Shafin Jahan v/s Ashokan K.M. (Love Jihad Case)
Court Name: Supreme Court Of India
Judgement Decision: 9 April 2018
- Whether the High court has the jurisdiction under article 226 of
Constitution of India to null and void the marriage of an adult?
- Whether the Hadiya father had a right cause to file a case under writ
- Whether Adult have to take prior Approval of his /her parents?
Arguments Of High Court - as they declare marriage null and void
After Entering in marriage High Court recorded its absolute Dissatisfaction at
the manner in which marriage took place. High court also exercises its Parens
Patriae Jurisdiction and said that it has a duty to ensure that young girls like
detenue are not exploited or transported outside of the country.
Court said that the detenue who is a female in her twenties is at vulnerable age
should be in custody of his parents.
Court said as per Indian Tradition the custody of unmarried daughter is with the
parents especially in the circumstances where marriage has been performed by
High Court said that a girl age 24 years is weak and vulnerable capable of being
exploited in many ways so, it is the duty of this court to ensure the safety of
Ms Akhila (Hadiya) in safe hands.
With these directions the Division bench of Kerala High Court declared the
Marriage between Hadiya and Shafin Jahan as null and void.
Petition bought to supreme court by Shafin Jahan challenging the decision of
high Scourt Supreme court interacted with Hadiya and noted that she desires to
pursue and complete her studies as a student of Homeopath at a college in Salem
court directed the authorities of state to permit her to travel to Salem in
order to enable her to pursue her studies.
Supreme Court Arguments
Per J Dipak Mishra and J Khanwilkar.J
They said that role of court is to see that the detenue is produced before it
find out about his/her independent choice and see to it. They said that Kerala
High Court has taken Hadiya Marriage to exception but there was nothing to be
taken as exception as Hadiya as a major could enter into Marital relationship.
They said parental love or concern cannot be allowed to deviate the right of
choice of an adult in choosing a man to whom she gets married and that is where
the high court has done error, the High Court should have after an interaction
on regards her choice directed that she was free to go where she wished to. They
said also high court show socially radicalised behaviour like patriarchal
society this approach of H.C. on said score is wholly fallacious.
S.C. said that case is not of Habeas Corpus why H.C. falsely take the matter in
cognizance of Habeas Corpus, because the future activity to be governed and
controlled by state in accordance with law.
Expression of choice in accord with law is acceptance of individual identity
curtailment of that expression and ultimate action emanating there from the
conceptual structuralism of obeisance to the societal will destroy the
individualistic component of a person. To have the freedom of faith is essential
to his/her autonomy.
Another Aspect talked by supreme court that H.C. has invoked Parens Patriae
doctrine in Latin means "parent of the ration".
S.C. said that the constitution court in this country exercise parens patriae in
matter of child custody. There are situations when the court can invoke parens
Ex: - when a person is mentally ill
When girl is not major
The court cannot in every and any case invoke the parens patriae doctrine The
said doctrine invoked only in exceptional cases. But there is no exceptional
case in Hadiya case.
Per J Chandrachud (Concurring opinion)
He says that the ambit of habeas corpus 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/he is not under illegal confinement, which the court finds to be a
free expression of will, that would conclude the exercise of jurisdiction schism
between Hadiya and her father.
May be unfortunate but it was no part jurisdiction of High Court to decide what
it considered to be a just way of life or correct course of living.
She has absolute autonomy over her person. Once Hadiya appeared before High
Court and stated that she was not under illegal confinement there was no warrant
for H.C. to proceed further in exercise of its jurisdiction under article 226
purpose of Habeas Corpus ended.
How Hadiya choose to lead her life is a matter of her choice
He said that while exercising the petition of Habeas Corpus and declare the
Marriage null and void is plainly in excess of judicial power.
Both Hadiya and Shafin Jahan are adults under Muslim laws it recognises the
rights of adults to marry by their own free will.
Conditions for valid Muslim marriage are:
- Both should attain puberty
- Offer and acceptance must happen between both and two witness must be
- Dower and Mehar should be.
- Absence of prohibited degree of relationship.
He said that society ahs no role to play in determining pour choice of
partners, our choices are respected because they are ours.
Social approval for intimate personal decision is not the basis for recognising
them. Indeed, constitution protect personal liberty from disapproving audiences.
He said Article 16 of Universal Declaration of Human Rights Underscore the
Fundamental importance of marriage as an incident of human liberty. Also, right
to marry a person of one's choice is integrated to Article 21.
Constitution of India guarantees Right to life, it cannot be taken away except
through a law which is substantially and procedurally fair.
Honourable Supreme Court of India In this case, set aside the judgement of
Kerala High Court declaring the marriage between Hadiya and Shafin Jahan null
and void. The Marriage was restored by Supreme Court and court held that
investigation led by NIA to probe the marriage and any other issue shall
continue but there should be no interference between the Marriage. A 3- Judges
bench J Dipak Mishra, J khanwilkar, and J Chandrachud give judgement and ordered
Hadiya to pursue her study by residing away from her parents which she wants.
This case can be the appropriate example of Patriarchal autocracy and possibly
self-obsession that female is a property of men. The judgement given by Kerala
High Court clearly shows patriarchal Mindset still exist in our society which is
bad for our nation.
The Judgement of Kerala High Court shows that women are still vulnerable in this
society they are not free to choose their way of living.
Thus, Supreme Court rightly quashed the order of H.C. and passed the judgement
in favour of Hadiya where she has freedom of choice and religion which was
initially restricted by Kerala High Court.
By Judgement of supreme court, we can derive that If a person attains majority
whether he/she is male or female they have the right to marry to whom they want
with their consent without interference from parents and society. In article 21
of Indian Constitution right to life and personal liberty provided after
interpretation right to marry also come under article 21 which is a fundamental
right. Thus, the marriage Between Hadiya and Shafin Jahan was valid and it gives
a clear view to our society that everyone is free to marry anybody.
Written By: Saurabh Yadav
, B.A.LL.B. 1st year, RMLNLU Lucknow