In the instant case, Justice Chandrachud, in his separate concurring judgment, wrote that the Kerala High Court, in the case, treaded on an area which must be out of bounds for a constitutional court.
By: Vanshika Sahu, Satpura Law College, Chhindwara, Madhya Pradesh.
In early 2016 she was reported to be missing by her father, who initially filed a police case and then a habeas corpus petition in the Kerala High Court to trace her; Hadiya has described the circumstances of her leaving as her father forbidding her from practicing Islam. She left her home for college on 6 January, dressed in a Hijab. She was staying with A.S. Zainaba, President of Popular Front of India (PFI)‘s women’s wing National Women’s Front (NWF). She had converted to Islam and married a Muslim man Shafin Jehan. Shafin Jehan is an active member of the PFI affiliated Social Democratic Party of India (SDPI). Her family alleged she was brainwashed and her marriage was forced, but Hadiya says she did of her own volition.
High Court’s Hadiya case
In May 2017, Hadiya’s marriage was annulled by the High Court of Kerala on the grounds of a report submitted by the National Investigation Agency (NIA) to the Supreme Court of India (SC), saying that Hadiya was a victim of indoctrination and psychological kidnapping and that their claims of their marriage being arranged through a matrimony website were “bogus.”
The High Court of Kerala then handed over Hadiya’s custody to her father, Ashokan, arguing that “As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married.”
Shafin Jahan appealed the Kerala High Court order and moved to the Supreme Court. In November 2017, the Supreme Court of India directed Hadiya to resume her internship, and that she was free to meet whomever she wanted. In March 2018, the Supreme court restored Hadiya’s marriage, 10 months after the Kerala High Court annulled it.
This case is often reported in media with a headline containing the term love jihad.
An important judgment made by Justice Chandrachud
On the 15th of November, an important judgment made by Justice Chandrachud on personal liberty came in the Hadiya case. This was also decided by the same Bench which compromised of the then CJI Deepak Mishra and Justice A N Khanwilkar.
In this case, however, the judgment was unanimous with all the three judges ruling against Kerala High Court which had annulled the marriage between Hadiya and Shafin Jahan.
Hadiya, who was a Hindu, had converted to Islam and had married a Muslim Shafin Jahan. The Kerala High Court had annulled the marriage stating the same was not free from coercion. It had also ordered Hadiya to be placed in the custody of her parents.
Justice Chandrachud, in his separate concurring judgment, wrote that the Kerala High Court, in the case, 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 judgment noted.
“The High Court was of the view that at twenty-four year, Hadiya “is weak and vulnerable, capable of being exploited in many ways.” The High Court has lost sight of the fact that she is major, capable of taking her own decisions, and is entitled to the right recognized by the Constitution to led her life exactly as she pleases. Intimacies of marriage included the choices which individuals make on whether or not to marry and on whom to marry, lies outside the control of the State. Courts as upholders of Constitutional freedoms must safeguard these freedoms. Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms,” the judgment said.
The court, therefore, ordered Hadiya to be released from her parent’s custody.