The Supreme Court on Monday released the full judgment following its order from March in which it reinstated the marriage of Hadiya and Shafin Jahan, a couple in Kerala who have had to fight legal battles because the woman’s father felt she should not have been free to convert to Islam. The apex court had struck down a Kerala High Court decision to annul their marriage, saying adults choosing both their religion and whom to marry are both fundamental rights guaranteed by Constitution. In the full judgment released on Monday, the court reiterates this, insisting that the High Court should never have questioned Hadiya’s marraige in the first place, and that coming in the way of choosing partners or religion is ‘patriarchal autocracy’ and patently illegal.
The majority judgment, from the three-judge bench, was written by Chief Justice Dipak Misra and Justice Khanwalkar. Misra, in his typical manner, begins with an elaborate metaphor to explain what happens when individual rights are smothered.
Rainbow is described by some as the autograph of the Almighty and lightning, albeit metaphorically, to be the expression of cruelty of otherwise equanimous “Nature”. Elaborating the comparison in conceptual essentiality, it can be said that when the liberty of a person is illegally smothered and strangulated and his/her choice is throttled by the State or a private person, the signature of life melts and living becomes a bare subsistence. That is fundamentally an expression of acrimony which gives indecent burial to the individuality of a person and refuses to recognize the other’s identity. That is reflection of cruelty which the law does not countenance.
The judgment goes on to call the High Court judgment, which annulled Hadiya and Jahan’s marriage on the demand of the woman’s father, a “sanctuary of errors”.
The exposé of facts in the present case depicts that story giving it a colour of different narrative. It is different since the State that is expected to facilitate the enjoyment of legal rights of a citizen has also supported the cause of a father, an obstinate one, who has endeavoured immensely in not allowing his daughter to make her own choice in adhering to a faith and further making Everestine effort to garrotte her desire to live with the man with whom she has entered into wedlock. The thought itself is a manifestation of the idea of patriarchal autocracy and possibly self-obsession with the feeling that a female is a chattel. It is also necessary to add here that the High Court on some kind of assumption, as the impugned judgment and order would reflect, has not been appositely guided by the basic rule of the highly valued writ of habeas corpus and has annulled the marriage. And that is why the order becomes a sanctuary of errors.”
The key question before the High Court had been whether Hadiya’s father’s insistence that he was the guardian of his daughter, though she was an adult, could override her own choice to marry someone and convert to a different faith. The High Court had then sided with her father, as well as the argument that their marriage was a symbol of the spurious phenomenon of “love jihad” spread by right-wing Hindutva organisations that claim Muslims are enticing Hindu women into falling in love just so they can be converted.
The Supreme Court makes it clear that even if the High Court believed such a thing to be happening, it could not take away Hadiya’s fundamental rights.
In the instant case, the High Court, as is noticeable from the impugned verdict, has been erroneously guided by some kind of social phenomenon that was frescoed before it...
The High Court unwarrantably took exception to the same forgetting that parental love or concern cannot be allowed to fluster the right of choice of an adult in choosing a man to whom she gets married. And, that is where the error has crept in, The High Court should have, after an interaction as regards her choice, directed that she was free to go where she wished to.
In the concluding portions of the majority judgment, the court reiterates this idea over and over, insisting that individual freedoms cannot be trampled on by either societal concerns or the opinions of parents.
It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal 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...
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...
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. Therefore, the High Court has completely erred by taking upon itself the burden of annulling the marriage... when both stood embedded to their vow of matrimony.
Justice DY Chandrachud added a supplementary judgment, reaffirming the decision taken by the majority order, but berating the High Court even further for putting Hadiya through the sort of process during which here very fundamental rights were taken away from her.
The High Court of Kerala has committed an error of jurisdiction. But what to my mind, is disconcerting, is the manner in which the liberty and dignity of a citizen have been subjected to judicial affront. The months which Hadiya lost, placed in the custody of her father and against her will cannot be brought back. The reason for this concurring judgment is that it is the duty of this Court, in the exercise of its constitutional functions to formulate principles in order to ensure that the valued rights of citizens are not subjugated at the altar of a paternalistic social structure.
Chandrachud also covers the territory of why Hadiya’s father cannot simply decide what her life should be like. As an individual, the order says, she has the freedom to pick her own path.
The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a ‘just’ way of life or ‘correct’ course of living for Hadiya. She has absolute autonomy over her person... How Hadiya chooses to lead her life is entirely a matter of her choice. The High Court’s view of her lack of candour with the court has no bearing on the legality of her marriage or her right to decide for herself, whom she desires to live with or marry.
Chandrachud points out that this judgment is important not just in Hadiya’s immediate case but in explaining how the High Court’s decision came from an underlying paternalism, one that the Supreme Court must take pains to guard against.
The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. The concern of this Court in intervening in this matter is as much about the miscarriage of justice that has resulted in the High Court as much as about the paternalism which underlies the approach to constitutional interpretation reflected in the judgment in appeal...
Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms. Others are dissuaded to exercise their liberties for fear of the reprisals which may result upon the free exercise of choice. The chilling effect on others has a pernicious tendency to prevent them from asserting their liberty. Public spectacles involving a harsh exercise of State power prevent the exercise of freedom, by others in the same milieu. Nothing can be as destructive of freedom and liberty. Fear silences freedom.
Chandrachud spelt out that society has no role to play in determining our choice of partners.
“The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled. These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining our choice of partners.”
