Kerala love jihad case: Supreme Court must defend adults' rights to act, live and marry as they please under law

The Supreme Court on Tuesday passed certain observations in the case that has been popularly referred to as the "Kerala love jihad" case. Hearing an appeal in the Supreme Court, against a Kerala High Court order dated 24 May 2017, which annulled a marriage between a Muslim Convert and another person, the Chief Justice of India asked if the high court could prima facie annual a marriage, and adjourned the matter to 9 October so that the Additional Solicitor General of India who is arguing the matter could also be heard.

File image of the Supreme Court of India. AFP

File image of the Supreme Court of India. AFP

The court had earlier directed an investigation by India's National Investigative Agency (NIA) to probe into the matter and see if this was part of an alleged wider network of forcible conversions popularly known as "love jihad".

The case raises a few important questions of constitutional law. What is the extent of the parens patriae jurisdiction of the high court in so far as it concerns adults? What are the powers of a high court while disposing of a writ of habeas corpus and whether the power of the high court under Article 226 can extend to annulling a marriage?

The Kerala High Court in its final order on the case did three things:

a) It provides custody of the woman in question to her parents. Even though she is 24 years of age and, therefore, is a major under Indian law and, therefore, requires no guardian.

b) Annuls the marriage she had with one Shafin Jahan on the grounds that it was a sham.

c) Orders the police to inquire into the case and the organisations behind it.

The parens patriae jurisdiction is an inherent power vested in the Supreme Court, a high court, and the State to act in the best interests of a person who is incapable of acting on their own. In general terms, it is often invoked in the case of children or people who are of unsound mind. Sometimes, the State also invokes it in order to protect a wider class of people. The government invoked this jurisdiction when it became the principle litigant in the Bhopal Gas Tragedy case. However, it is very uncommon for a court to exercise this jurisdiction over individual adults and the decisions that they make. Usually, any court order for the welfare of a consenting adult is made only with their consent. But in this Kerala love jihad case, this was not so.

Oddly, the order of the Kerala High Court goes on to record that Hadiya/Akhila (the woman in question) was present and represented in court by counsel, however, the court proceeded to pass an order for her welfare despite her express wishes on an affidavit. Hadiya/Akhila is now in her parents "custody" and the court expressing why it exercised the parens patriae jurisdiction says at Paragraph 50 of its order:

"A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways. This court exercising parens patriae jurisdiction is concerned with the welfare of a girl of her age. The duty cast on this court to ensure the safety of at least the girls who are brought before it can be discharged only by ensuring that Akhila is in safe hands."

The Kerala High Court notes that in previous cases the court had agreed that a parent could have authority over a child even after the child attains majority. It refers to the case of Lal Parameswar vs Ullas [2014 (1) KLT 937] as the basis for this reasoning. However, this author respectfully disagrees with the ratio of that case as applied in the present case. The Lal Parmeshwar case was where the Petitioner had applied to the court for a writ of habeas corpus stating that his wife was being illegally confined by her parents. The court actually explicitly records that the autonomy of a woman ought to be respected and that the sphere of parental authority after majority is limited. The court at paragraph 18 holds:

"This court comes across many such cases of alleged detentions/confinement/compulsive restraint placed on adult daughters by parents. We have taken a consistent stand that the decisional autonomy of such an adult daughter will have to be respected. An adult woman cannot be treated as chattel by this court. Her rights as an equal citizen will have to be respected and cannot be denied. In cases where we feel that the decision of such alleged detenue does not appear to be voluntary and genuine, we resort to the course of granting them time to reflect, contemplate and ponder. We give them opportunity to be accommodated in neutral venues for some period to facilitate rational and dispassionate evaluation — sometimes for long periods. We give parents opportunity to counsel their children during such period. But ultimately, we do respect the decisional autonomy of such adult children. We are convinced that, that is the proper course to be followed in all cases. To do otherwise would simply be denial of (the) human rights of an adult woman to take decisions affecting her future. That would certainly be denial of the right to life guaranteed under Article 21 of the Constitution of India. The mere fact that the decision may turn out to be incorrect, or bad does not justify the denial of the right to take a decision. We do not permit our concepts of what is right and good for them to override their own assessment of what is right and good for them. We do not permit the concept of others (including parents) of what is right and good for them to override their own concepts. Concept of right and good may vary with the times. This generation's concept of right and wrong may not find acceptance with the next. No generation or parent can claim infallibility and enforce its/his concept of right and wrong on the succeeding. Suffice it to say that we do not agree with the learned counsel that Prasadhkumar and Sreekesh (supra) concede to the parents any unbridled rights to usurp the decisional autonomy of their adult daughters and keep them in 'custody' against their desire in exercise of their parental authority or duty. We do not agree that the said decisions lay down that this court cannot exercise jurisdiction under Article 226 of the Constitution of India in such a situation. We do not agree that the mere fact that the petitioner's marriage with the alleged detenu may not be strictly legal is sufficient to deny relief. At least it can be said that in the present era of social and societal development in this state such understanding of the dictum is impermissible. In the peculiar facts of those cases and to cater to the interests of justice in such situations, the courts had followed such courses while considering invocation of the jurisdiction under Article 226."

The court, however, proceeds on the basis that the confinement of a daughter by the parents even after she has attained majority is not "illegal confinement or detention" and accordingly refuses to grant a habeas corpus to the petitioner.

This, however, was not the position in the Kerala Love Jihad case. In this case, the petitioner was the father seeking custody of his daughter, who was not in the custody of another.

The court for the benefit of the woman applied this principle of parental control and invalidated her marriage and directed her to live with her parents as she had no income to support herself. The woman, in this case, was denied to live where she chooses to live. With due respect to the honourbale high court, the application for the aforesaid case law was erroneous.

However, at this point, it becomes necessary for us to discuss what exactly is a writ of habeas corpus. The writ is one of the most ancient of writs recognised under Common Law and later incorporated into our Constitution. It is generally considered the greatest safeguard a country can provide for the personal liberty of an individual and it literally translates to "bring me the body". When a person is detained, that person or their next friend can move a high court or the Supreme Court for a writ of habeas corpus. The writ directs that authority or the person detaining them to produce them before the court and the court proceeds to review their detention and if it finds that they are illegally being detained the court will let them free.

In this case, the woman's father filed for a Writ of habeas corpus stating that Akhila/Haidya was being illegally detained and could be taken out of the country. The court, however, does not deal with the question of her illegal detention. From her own affidavits before the court, she explains that she is not being detained against her will. The court then proceeds to overrule her own determination of the situation and grants "custody" of her to her parents. This goes against the main reasoning in Lal Parameswar vs Ullas [2014 (1) KLT 937] itself. Without entering a finding that Akhila/Haidya was being illegally detained, there was no basis to issue an order under the court's jurisdiction under Article 226.

The consequences of this judgment are far reaching as it implies that parents who can prove to the court that their children (who have attained majority) are living somewhere unsuitable (as determined by the court) could be returned to their parents. There is no determination of illegal detention that is required.

But there is also another question that arises in these peculiar facts and circumstances. The court by its order, invalidates the marriage between her and Shafin Jahan saying that it's a sham marriage. The law presumes that a marriage is valid unless that presumption is rebutted. In Chanmuniya vs Virendra Kumar Singh Kushwaha [(2011) 1 SCC 141], the Supreme Court recognised the doctrine under English Law and then incorporated the said doctrine in India. The question of whether a marriage is valid or not becomes a trial-able issue of fact and only a family court can determine if the marriage is valid or not as only a family court has the power to annul marriages.

A high court under 226 cannot proceed to annul a marriage it considers a sham. If that was the case, a writ for annulment of a marriage would become maintainable. A marriage is valid unless it is annulled by a family court. If Akhila/Haidya was indeed under compulsion to marry Shafin Jahan, then it would be open to her and only her to move the family court to have that marriage annulled. The law cannot allow a third party to maintain such an application. If that would be the case, anyone's marriage could be open to challenge by a third party. This, with due respect to the Kerala High Court, is a rather unsustainable proposition of law.

The Supreme Court directed an NIA investigation into the alleged matter of "Love Jihad", however, this investigation may not also prove relevant as far as the question of the marriage is concerned. For, under Indian Law, a marriage even to an unsuitable person, is still a valid marriage. The Indian Law even recognises the marriage of minors as being valid unless it has been annulled by a competent court which in this case is the family court.

The question of the validity of the marriage is not something that can be determined by a high court in a writ. The high court’s order is respectfully erroneous to that extent. Along with that, respectfully, the order is also further erroneous to the extent that, failing a finding of illegal detention a writ of habeas corpus has been issued. Moreover, so, the writ has awarded the "custody" of the body of a major to her parents without her wishes being respected.

If Akhila/Haidya wishes like any other citizen of India, she should be permitted to travel where she likes and do as she pleases. The order directing that she stays only with her parents is one that in effect confines her making the order a prima facie incorrect exercise of the power to issue a writ of habeas corpus.

The judgment of the Kerala High Court warrants revisiting. The NIA aspect aside, the Supreme Court will have to answer several questions while hearing the appeal such as the question of the right of a major to marry someone of their choosing, the question of if a third party can maintain an application to annul and if a parent can maintain a writ of habeas corpus in the case of a major who is not under illegal confinement. The antecedents of Akhila/Haidya’s husband are in the view of this author irrelevant for the purpose of determining the aforesaid questions. Unless there is a law that prima facie invalidates marriages people who have criminal antecedents (no such law exists), the question of such antecedents is irrelevant in so far as it is regarding a decision made by a major.

The Indian law recognises the right and liberty of all majors to do as they please, marry as per their choice, live where they please and with whomever they please in accordance with the law. This is a principle that is worth defending at all costs.


Published Date: Oct 03, 2017 11:01 pm | Updated Date: Oct 03, 2017 11:04 pm


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