'Right To Change Of Faith Is Part Of Fundamental Right Of Choice': Read The Reasons For SC's Decision In The Hadiya Case [Read Judgment]

The Supreme Court on Monday delivered a detailed judgment in the Hadiya case, almost a month after it set aside the Kerala High Court judgment calling Hadiya's marriage to Shafin Jahan a “sham”, and annulling it, while directing her return to the protective custody of her Hindu parents.In the judgment, the Bench comprising Chief Justice of India Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud opined that the High Court had transgressed the limits of its jurisdiction, and therefore set aside the impugned judgment.It, however, allowed investigation by the NIA to examine any aspects of criminality involved, while clarifying that the validity of marriage between the two would not be a part of the subject matter of investigation.Chief Justice Misra authored the majority opinion on behalf of Justice Khanwilkar and himself, while Justice Chandrachud wrote a separate concurring opinion.Factual matrixThe Court was hearing a Special Leave Petition filed by Mr. Jahan, challenging the judgment passed by the Kerala High Court.In the impugned judgment, the High Court Bench comprising Justice Surendra Mohan and Justice Abraham Mathew had made some controversial observations like: “a girl aged 24 years is weak and vulnerable, capable of being exploited in many ways” and “her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents”. Mr. Jahan had now contended that the marriage was annulled without any legal basis, and had submitted, “…the impugned order is an insult to the independence of women of India as it completely takes away their right to think for themselves and brands them as persons who are weak and unable to think and make decisions for themselves. That the same is against their fundamental rights and should be struck down”.A Bench comprising Chief Justice J.S. Khehar and Justice D.Y. Chandrachud had thereafter directed the National Investigation Agency (NIA) and the Kerala Government to submit all documents related to the case. It had also directed Hadiya’s father Asokan to submit proof of his claim that Hadiya was converted after being radicalized. Soon after, the Apex Court had directed an NIA probe into the case, under the supervision of former Supreme Court Judge, Justice R.V. Raveendran.Justice Raveendran had, however, declined the Court's request, after which, Hadiya’s husband had approached the Apex Court, seeking recall of the order directing NIA probe into the matter. He had filed an application contending that “certain facts have emerged which call for a reconsideration” of the order.He had further submitted that the Agency had begun investigating the matter despite Justice Raveendran's refusal to head the probe. This, he had said, violated the Court's order. There have been several allegations and counter-allegations since.In November, when the Court finally heard Hadiya, it directed her to be sent “at the earliest” to Sivaraj Homeo Medical College, Salem to complete her house surgency. The Kerala Government was asked to make all arrangements and the Dean of the college was directed to ensure her protection.Hadiya had then, earlier this year, sought the Court's permission to live with Shafin Jahan as husband and wife. In her affidavit, Hadiya had categorically stated that she had embraced Islam and married Shafin Jahan on her own free will.CJI's opinionIn his opinion, Chief Justice Misra began with analyzing the role of the Court when faced with a habeas corpus petition and opined that in the case at hand, the High Court had been "erroneously guided by some kind of social phenomenon that was frescoed before it". He opined that the High Court had "erred by reflecting upon the social radicalization" and that the impugned order was "absolutely unnecessary". He observed that if there was any criminality involved, it should have been left to the law enforcement agencies to take care of, observing,"The High Court further erred by reflecting upon social radicalization and other aspects. In a writ of Habeas Corpus, it was absolutely unnecessary. If there was any criminality in any sphere it was for law enforcement agency to do the needful but as long as the detenu has not been booked under law, the obligation of the court is to exercise the celebrated writ that breathes life into our Constitutional guarantee of freedom."The Court went on to rap the High Court for invoking the Parens Patriae doctrine, asserting that the same can be exercised only in exceptional cases where the parties before it are either mentally incompetent or have not come of age and it is proved to the satisfaction of the court that the said parties have either no parent/ legal guardian or have an abusive or negligent parent/ legal guardian.It then emphasized on the freedom of choice being a constitutional as well as a human right and set aside the impugned judgment, observing, "In the case at hand, the father in his own stand and perception may feel that ...

'Right To Change Of Faith Is Part Of Fundamental Right Of Choice': Read The Reasons For SC's Decision In The Hadiya Case [Read Judgment]

Apoorva Mandhani

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