Shafin Jahan

Vs

Asokan K.M. and Others

FACTS
Ms.Akhila alias Hadiya, aged about 26 years at present, the only child of Sh. Asokan K.M.,
and Smt. Ponnamma, had completed a degree in Homeopathic Medicine, BHMS (Bachelor of
Homeopathic Medicine and Surgery) from Shivaraj Homeopathic Medical College, Salem in
Tamil Nadu. While pursuing the said course, she was initially residing in the college hostel
and later she started staying in a rented house near her college together with five other
students among whom were Jaseena and Faseena, daughters of one Aboobacker. During the
college holidays, Hadiya used to visit the house of Aboobacker and there was also an
occasion when both Jaseena and Faseena came to reside with Hadiya at the house of Asokan,.
On 6th December, 2015, Hadiya’s paternal grandfather breathed his last. Hadiya on that day
came back to her house and it is alleged that at that time, the family members and relatives of
Asokan noticed some changes in her behaviour as she was showing reluctance to participate
in the rituals performed in connection with the funeral of her grandfather. Thereafter, she
went to Salem for her internship along with Jaseena and Faseena. Till 5th January, 2016, she
was in constant touch with her family. Thereafter, on the next day, i.e., 6th January, 2016,
Asokan received a telephone call from one of the friends of Hadiya informing that Hadiya
had gone to the college on that day wearing a ‘Pardah’. Further informed that Hadiya was
inspired by someone to change her faith.
Upon receiving the information, Asokan fell ill. Smt. Ponnamma, wife of Asokan, called
Hadiya and informed her about the illness of her father. Jaseena and Hadiya left for Salem
about 8 p.m. on 6th January, 2016 but Hadiya did not reach her father’s house. Later Asokan
went in search of Hadiya and came to know from one Ms. Archana that Hadiya was living at
the house of Aboobacker. Thereupon, Asokan contacted Aboobacker for meeting his
daughter Hadiya. Aboobacker promised Asokan that he would bring Hadiya to the house of
Ms. Archana, a friend of Hadiya, but this never happened and later Asokan was informed that
Hadiya had escaped from the house of Aboobacker and had run away somewhere. Disgusted
and disgruntled, as he was, Asokan filed a complaint before S.P. Malapuram District, but as
there was no progress made by the police in the investigation of the matter, Asokan filed a
Writ Petition of Habeas Corpus before the Division Bench of the High Court of Kerala being
W.P. (Criminal) No. 25 of 2016.
ISSUES

JUDGEMENT
The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The
Constitution guarantees the right to life. This right cannot be taken away except through a law
which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the
Constitution guarantees as a fundamental right is the ability of each individual to take decisions on
matters central to the pursuit of happiness. Matters of belief and faith, including whether to
believe are at the core of constitutional liberty. 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.
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. However, the validity of the marriage between Shafin
Jahan and Hadiya shall not form the subject matter of the investigation. Moreover, nothing
contained in the interim order of this Court will be construed as empowering the investigating
agency to interfere in the lives which the young couple seeks to lead as law abiding citizens.

CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE DR. JUSTICE D.Y.
CHANDRACHUD For Petitioner(s) Mr. Kapil Sibal, Sr. Adv.
Ms. Indira Jaising, Sr. Adv. Mr. Haris Beeran, Adv. Mr. Mushtaq Salim, Adv. Mr. Usman Ghani Khan,
Adv. Mr. Dev Prakash, Adv.
Mr. K.P. Mohamad Shareef, Adv. Mr. K.C. Naseer, Adv.
Mr. A. Mohamed Yusuf, Adv. Mr. S.A.S. Alaudeen, Adv. Mr. M. Abdul Shukoor, Adv. Ms. Pallavi
Pratap, AOR Ms. Nehmat Kaur, Adv.
For Respondent(s) Mr. Maninder Singh, ASG Mr. Nalin Kohli, Adv.
Mr. R. Balasubramanian, Adv. Mr. Prabhas Bajaj, Adv.
Mr. Ankit Roy, Adv.
Ms. Nimisha Menon, Adv.
Mr. Akshay Amritanshu, Adv. Mr. Neel Kamal, Adv.
Mr. B. V. Balaram Das, AOR
Crl.A.366/2018 Mr. P. A. Noor Muhamed, AOR Ms. Giffara S., Adv.
Mr. Bilal Niamathulla, Adv.
Mr. Shyam Divan, Sr. Adv.
Mr. Madhavi Divan, Adv.
Mr. A. Raghunath, AOR Mr. C. Rajendran, Adv.
Mr. M.G. Yogamaya, Adv.
Ms. Nidhi Khanna, Adv.
Mr. Ayush Puri, Adv.
Mr. Jaideep Gupta, Sr. Adv. Mr. C. K. Sasi, AOR Mr. Manukrishnan G., Adv.
Ms. Nayantara Roy, Adv.
Ms. Aishwarya Bhati, AOR Mr. T. Gopal, Adv.
Ms. Vaidruti Mishra, Adv.
Mr. Vishwajeet Singh, Adv.
Mr. Jaideep Singh, Adv.
Mr. Rakesh Mudgil, Adv.
Gp. Capt. Karan Singh Bhati, AOR Mr. Sayid Marzook Bafari, Adv. Mr. Faisal M. Aboobaker, Adv. Mr.
Towseef Ahmad Dar, Adv.
Mr. P. V. Dinesh, AOR Ms. Swarupama Chaturvedi, AOR Ms. Bhawna Singh Dev, Adv.
Mr. B.N. Dubey, Adv.