• Legis Scriptor


Authored by - Hemant Kumar

Keywords: Parenspatrie, kerela High Court, Supreme Court, Religion, Freedom



This article has done an in-depth study on a specific case on inter-caste marriage which was Shafin Jahan v Asokan K M and Others. A girl should have the liberty of choosing the religion and partner of her choice. Unfortunately, a lot of times the Judiciary tends to curb the rights of women and impose social restrictions of them. This case has led to an erroneous judgment passed by the High court and the Supreme Court had to ultimately overrule it. It shows the beauty of the hierarchical system of courts in India.


Our constitution provides us various rights. Article 32[2] makes the Supreme Court of India the “ultimate guarantor of our fundamental rights”. Article 25[3] which says that “all people are free to practice any religion” is proved by this case. An adult is free to marry any person of its choice.


When Hadiya Aliyas Akhila wanted to stay with her husband with her will and changed her faith to Islam,Kerala High Court ruled against her wishes and compelled her to live with her parents against her will. She was a major of 24 years and lost many months of her studies because of the extraordinarily long Court proceedings. She married Shafin Jahan against her father’s will and the Court exercising ‘parenspatrie’ jurisdiction claimed that she was a weak and vulnerable girl who was capable of being exploited. The Court found it as a duty upon itself to safeguard her and allowed the writ of habeas corpus filed by the father.

Findings of High Court and Judgment

The High Court of Kerala also declared the marriage of Akhila and Shafin Jahan to be null and void. However, the Supreme Court of India set aside the judgment of the High Court annulling the marriage of Hadiya and Shafin Jahan. Moreover, the SC also allowed her to pursue her studies in the college of her choice along with her internship.

Two writ petitions were filled by the father of Hadiya. In the first petition, the High Court said that she is not illegally confined but in the second one, Court observed that since she was under the fear of being transported to another country, it allowed the writ petition and compelled her to live with her pants.

The principle findings which have been recorded by the High Court need to be revisited and are summarised below:

  1. This was “not a case of a girl falling in love with a boy of a different religion and wanting to get married to him” but an “arranged marriage” where Hadiya had no previous acquaintance with Shafin Jahan;

  2. Hadiya met Shafin Jahan on an online portal called “Way to Nikah”;

  3. During the course of the proceedings, Hadiya had stated before the Court that she desired to complete her studies as a student of Homeopathy and “nobody had a case at that time that she wanted to get married”;

  4. Though on 19 December 2016, the High Court adjourned the hearing to 21 December 2016 to enable her to proceed to her college and the marriage took place on the same day;

  5. The marriage was “only make-believe intended to take the detainee out of reach of the hands of this Court”;

  6. The conduct of the parties in conducting the marriage without informing the Court was unacceptable;

  7. There is no document evidencing the conversion of Hadiya to Islam; the antecedents of Shafin Jahan and his Facebook posts show a radical inclination; and

  8. No prudent parent would decide to get their daughter married to a person who is an accused in a pending criminal case.

Analysis of the Judgement

Two serious concerns emerge from the judgment of the Kerala High Court. The first is that the High Court transgressed the limits of its jurisdiction in issuing a declaration annulling the marriage of Shafin Jahan and Hadiya, in the course of the hearing of a habeas corpus petition.

The ambit of a habeas corpus petition is to trace an individual who is stated to be missing. Once the individual appears before the Court and asserts that they are a major and is not under illegal confinement, The Court shall find it to be a free expression of will and that would conclude the exercise of its jurisdiction as seen in the case ofGirish vs.Radhamony K[4]

This is a free and democratic country, and once a person becomes a major, he or she can marry as per their wishes. If the parents of the major do not approve of such an inter-caste or inter-religious marriage, they can cut-off social relations with their ward but cannot give threats, commit or instigate acts of violence. The parents are not allowed to harass the person who participates in an inter-caste or inter-religious marriage. This was declared by the Court inLata Singh vs. State of UP[5]

The Division Bench paid scant regard to the earlier outcome and the decision of a coordinate Bench. The High Court inexplicably sought to deviate from the course adopted in the earlier proceedings. It was not part of the jurisdiction of the High Court to decide what is considered to be a ‘just’ way of life or ‘correct’ course of living for Hadiya. She has absolute autonomy in the decisions undertaken by her. The High Court had no authority to overstep in its role and proceed further in the exercise of its jurisdiction under Article 226 of the Constitution.

The exercise of the jurisdiction to declare the marriage null and void, while entertaining a petition for habeas corpus, is more than judicial power. In the process, there has been a serious transgression of Constitutional rights. Moreover, the society also has no role to play in determining our choice of partners.

Nothing contained in the interim order of this Court will be construed as empowering the investigating agency to interfere in personal lives, which the young couples seek to lead as law-abiding citizens.


Both the married person Shafin and Hadiya were majors. They were legally married and fulfilled all the requirements of marriage under Muslim law. In addition to this, Hadiya stated that she was not illegally confined against her will. She has all the right to live according to her free will and exercise autonomy. Marriages like these lead to honour killings in India, a social practice, followed by families, to condemn inter-caste marriages. The Supreme Court has rightly decided the case in favour of Hadiya. The Court has managed to protect the fundamental rights of Hadiya and has acted in accordance with the law.

[1] (2017) SCC 5777 SLP [2] The Constitution of India, 1950 [3] The Constitution of India, 1950 [4] (2009) 16 SCC 360 [5] (2006) 5 SCC 475