Holding

The Supreme Court held that the High Court erred in exercising jurisdiction to annul the marriage and that an adult's choice of marriage is a fundamental right, thereby allowing the appeal and setting aside the High Court's order.

Summary

The case arose from a habeas corpus petition filed by the father of Hadiya (respondent No.9), alleging that his adult daughter was being illegally detained and might be taken abroad. Hadiya appeared before the Kerala High Court, asserted her freedom of choice, and later disclosed that she had married Shafin Jahan (appellant) during the pendency of the proceedings. The High Court, invoking parens patriae, declared the marriage null and void and ordered her custody to her parents, a decision the Supreme Court found to exceed its jurisdiction. The Supreme Court held that an adult's choice of marriage and religion is a fundamental right under Articles 19 and 21, and that the High Court could not entertain a marriage annulment in a habeas corpus petition. Consequently, the appeal was allowed, the High Court's order set aside, and the investigation by the NIA was permitted to continue without affecting the marital status of the parties.

Issues considered

The High Court's jurisdiction to annul a marriage while entertaining a writ of habeas corpus under Article 226.
Whether the doctrine of parens patriae can be invoked for an adult woman capable of making her own choices.
Whether the daughter's choice of marriage and conversion to Islam is protected by Articles 19, 21 and the right to life.
Whether the alleged marriage was a sham and whether that fact could affect the habeas corpus relief.
Whether the detention of the daughter was illegal and required further judicial intervention.
Whether the National Investigation Agency may investigate alleged criminality without interfering with the marital status.

Subjects

habeas corpusparens patriaeright to marryadult autonomyfreedom of choiceArticle 19Article 21Article 226marriage annulmentreligious conversionNIA investigation

Judgment

[2018] 4 S.C.R. 955 955

SHAFIN JAHAN A
v.
ASOKAN K.M. & ORS.
(Criminal Appeal No. 366 of 2018)
APRIL 09, 2018 B
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
Habeas Corpus: Writ petition of Habeas corpus filed by
respondent-father apprehending that her daughter (respondent
C
no.9) aged 26 years was likely to be transported out of the country –
Daughter of writ petitioner appeared before the Court and
categorically declined to go with her parents and expressed her
desire to stay with respondent no.7 – During pendency of writ
petition she entered into marriage with appellant – By impugned
order, High Court held that a girl aged 24 years is weak and D
vulnerable and capable of being exploited in many ways and while
exercising parens patriae jurisdiction directed her custody to the
writ petitioner-father – With these directions, the High Court
declared the marriage between the appellant and respondent no.9
as null and void – On appeal, held: The expression of choice is a
E
fundamental right under Arts.19 and 21 of the Constitution, if the
said choice does not transgress any valid legal framework – Once
that aspect is clear, the enquiry and determination have to come to
an end – In a writ of habeas corpus, especially in the instant case,
it was absolutely unnecessary to reflect upon the social
radicalization – If there is any criminality in any sphere, it is for the F
law enforcing agency to do the needful but as long as the detenu
has not been booked under law to justify the detention which is
under challenge, the obligation of the Court is to exercise the
celebrated writ that breathes life into our constitutional guarantee
of freedom – In the case at hand, the father in his own stand and
G
perception may feel that there has been enormous transgression of
his right to protect the interest of his daughter but his view point
cannot be allowed to curtail the fundamental rights of his daughter
who, out of her own volition, married the appellant – Therefore,
High Court completely erred by taking upon itself the burden of
annulling the marriage between the appellant and respondent no.9 H
955
956 SUPREME COURT REPORTS [2018] 4 S.C.R.

A when both stood embedded to their vow of matrimony – Constitution
of India – Arts.19 and 21. (Per Dipak Misra, CJI and A. M.
Khanwilkar, J.)
Habeas Corpus: Role of writ court in entertaining writ petition
of Habeas corpus – Held: The pivotal purpose of the writ of habeas
B corpus is to see that no one is deprived of his/her liberty without
sanction of law – It is the primary duty of the State to see that the
said right is not sullied in any manner whatsoever and its sanctity is
not affected by any kind of subterfuge – The role of the Court is to
see that the detenu is produced before it, find out about his/her
independent choice and see to it that the person is released from
C illegal restraint – The issue is different when the detention is not
illegal. (Per Dipak Misra, CJI and A.M. Khanwilkar, J.)
Habeas Corpus: Writ of Habeas Corpus – If alleged detenu
appears before the writ court and states that she was not under
illegal confinement, there is no warrant for the Court to proceed
D further in exercise of its jurisdiction under Art.226 – Exercise of
jurisdiction to declare the marriage null and void while entertaining
a petition for habeas corpus is plainly in excess of judicial power –
Constitution of India – Art.226. (Dr. D.Y. Chandrachud, J.)
Constitution of India: Art.21 – Right of adult to marry a
E person of his or her own choice – Jurisdiction of High Court to
annul marriage while entertaining writ of habeas corpus – Held:
Deprivation of marital status is a matter of serious import and must
be strictly in accordance with law – High Court in the exercise of its
jurisdiction under Art.226 ought not to have embarked on the course
of annulling the marriage – The Constitution recognises the liberty
F and autonomy which inheres in each individual – This includes the
ability to take decisions on aspects which define one’s personhood
and identity – The choice of a partner whether within or outside
marriage lies within the exclusive domain of each individual –
Intimacies of marriage lie within a core zone of privacy, which is
inviolable – The absolute right of an individual to choose a life
G
partner is not in the least affected by matters of faith – The
Constitution guarantees to each individual the right freely to
practise, profess and propagate religion – Choices of faith and
belief as indeed choices in matters of marriage lie within an area
where individual autonomy is supreme – In deciding whether
H appellant is a fit person for writ petitioner’s daughter to marry, the
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 957

High Court entered into prohibited terrain – The High Court has A
transgressed the limits on its jurisdiction in a habeas corpus petition –
In the process, there has been a serious transgression of
constitutional rights – Habeas corpus – Universal Declaration of
Human Rights – Art.16. (Dr. D.Y. Chandrachud, J.)
Doctrines/Principles: Parens Patriae doctrine – Invocation B
of – Held: The doctrine has to be invoked 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 – In the instant case,
there was nothing to suggest that respondent no.9 suffered from C
any kind of mental incapacity or vulnerability – She was absolutely
categorical in her submissions and unequivocal in the expression
of her choice – Therefore, High Court erred in invoking Parens
Patriae jurisdiction. (Per Dipak Misra, CJI and A.M. Khanwilkar, J.)
Doctrines/Principles: Parens Patriae doctrine – The superior D
courts, when they exercise their jurisdiction parens patriae do so in
the case of persons who are incapable of asserting a free will such
as minors or persons of unsound mind – The exercise of that
jurisdiction should not transgress into the area of determining the
suitability of partners to a marital tie – That decision rests exclusively
with the individuals themselves – Neither the state nor society can E
intrude into that domain – The strength of our Constitution lies in
its acceptance of the plurality and diversity of our culture –
Intimacies of marriage, including the choices which individuals make
on whether or not to marry and on whom to marry, lie outside the
control of the state. (Dr. D.Y. Chandrachud, J.) F
Words and phrases: Parens Patriae – Meaning of, discussed.
(Per Dipak Misra, CJI and A.M. Khanwilkar, J.)
Allowing the appeal, the Court
HELD: Per Dipak Misra, CJI and A.M. Khanwilkar, J.
G
1.1 The pivotal purpose of the writ of habeas corpus is to
see that no one is deprived of his/her liberty without sanction of
law. It is the primary duty of the State to see that the said right is
not sullied in any manner whatsoever and its sanctity is not affected
by any kind of subterfuge. [Para 27] [980-D]
H
958 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 1.2 In the instant case, the High Court, has been
erroneously guided by some kind of social phenomenon that was
frescoed before it. The writ court has taken exception to the
marriage of the respondent No. 9 with the appellant. It felt
perturbed. There was nothing to be taken exception to. Initially,
respondent no.9 had declined to go with her father and expressed
B
her desire to stay with the respondent No.7 before the High Court
and in the first writ it had so directed. The adamantine attitude of
the father, possibly impelled by obsessive parental love,
compelled him to knock at the doors of the High Court in another
Habeas Corpus petition whereupon the High Court directed the
C production of respondent no.9 who appeared on the given date
along with the appellant whom the High Court calls a stranger.
But respondent no.9 would insist that she had entered into
marriage with him. The High Court should have, after an
interaction as regards her choice, directed that she was free to
go where she wished to. [Para 28] [980-F-H; 981-A-C]
D
1.3 The High Court further erred by reflecting upon the
social radicalization and certain other aspects. The High Court
has been swayed away by the strategy, as it thought, adopted by
the respondent No.7 before it in connivance with the appellant
and others to move respondent no.9 out of the country. That is
E not within the ambit of the writ of Habeas Corpus. The future
activity, if any, is required to be governed and controlled by the
State in accordance with law. The apprehension was not within
the arena of jurisdiction regard being had to the lis before it.
[Paras 29, 30] [981-C-D; E-F]
F Ranjit Singh v. State of Pepsu (now Punjab) AIR 1959
SC 843 : [1959] Suppl. SCR 727; Kanu Sanyal v.
District Magistrate, Darjeeling and Others (1973) 2
SCC 674 : [1974] 1 SCR 621; Ummu Sabeena v. State
of Kerala and Others (2011) 10 SCC 781: [2011] 13
SCR 185 – referred to.
G
Cox v. Hakes (1890) 15 AC 506; Secretary of State for
Home Affairs v. O’Brien [1923] AC 603 : [1923] ALL
E.R. Rep. 442 (HL); Greene v. Secy. of States for Home
Affairs [1942] AC 284 : [1941] 3 All ER 388 (HL);
Ware v. Sanders 146 Iowa 233 : 124 NW 1081 (1910)
H – referred to.
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 959

P. Ramanatha Aiyar’s Law Lexicon (1997 Edn.) – A
referred to
2.1 Another aspect which calls for invalidating the order of
the High Court is the situation in which it has invoked the parens
patriae doctrine. Parens Patriae in Latin means “parent of the
nation”. In law, it refers to the power of the State to intervene B
against an abusive or negligent parent, legal guardian or informal
caretaker, and to act as the parent of any child or individual who
is in need of protection. “The parens patriae jurisdiction is
sometimes spoken of as ‘supervisory’”. [Para 31] [981-G]
Charan Lal Sahu v. Union of India (1990) 1 SCC 613 C
: [1989] 2 Suppl. SCR 597; Anuj Garg and Others v.
Hotel Association of India and others (2008) 3 SCC 1
: [2007] 12 SCR 991; Aruna Ramachandra Shanbaug
v. Union of India (2011) 4 SCC 454 : [2011] 4
SCR 1057; State of Kerala v. N.M. Thomas (1976) 2
SCC 310 : [1976] 1 SCR 906 – referred to. D
Thomasset v. Thomasset [1894] P 295; City of Cleburne
v. Cleburne Living Center 473 US 432, 439-41: 105 S
Ct 3249 : 87 L Ed 2d 313 (1985) – referred to.
2.2 Constitutional Courts in this country exercise parens
E
patriae jurisdiction in matters of child custody treating the welfare
of the child as the paramount concern. There are situations when
the Court can invoke the parens patriae principle and the same
is required to be invoked only in exceptional situations. The
Constitutional Courts may also act as Parens Patriae so as to
meet the ends of justice. But the said exercise of power is not F
without limitation. The courts cannot in every and any case invoke
the Parens Patriae doctrine. The said doctrine has to be invoked
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
G
parent/legal guardian or have an abusive or negligent parent/legal
guardian. There is nothing to suggest that she suffers from any
kind of mental incapacity or vulnerability. She was absolutely
categorical in her submissions and unequivocal in the expression
of her choice. [Paras 39, 45, 52] [984-E-F; 986-E-F; 988-G]
H
960 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Heller v. Doe 509 US 312 (1993); E. (Mrs.) v. Eve
[1986] 2 SCR 388; Secretary, Department of Health
and Community Service v. J.W.B. and S.M.B. [1992]
HCA 15 (MARION’S Case) : (1992) 175 CLR 218;
AC v. OC (a minor) [2014] NSWSC 53; DL v. A Local
Authority and others [2012] 3 All ER 1064; Re: SA
B
(Vulnerable Adult with Capacity : Marriage) [2005]
EWHC 2942 (FAM); In Re F (Mental Patient:
Sterilisation [1990] 2 AC 1; A Local Authority v. HB,
MB, ML and BL (By their Children’s Guardian) [2017]
EWHC 1437 (Fam); A Local Authority v. Y. [2017]
C EWHC 968 (Fam) – referred to
3.1 The 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
D individualistic entity of a person. The social values and morals
have their space but they are not above the constitutionally
guaranteed freedom. The said freedom is both a constitutional
and a human right. Deprivation of that freedom which is ingrained
in choice on the plea of faith is impermissible. Faith of a person
is intrinsic to his/her meaningful existence. To have the freedom
E of faith is essential to his/her autonomy; and it strengthens the
core norms of the Constitution. Choosing a faith is the substratum
of individuality and sans it, the right of choice becomes a shadow.
[Para 53] [989-A-C]
3.2 The duty of the Court is to uphold the right and not to
F abridge the sphere of the right unless there is a valid authority of
law. Sans lawful sanction, the centripodal value of liberty should
allow an individual to write his/her script. The individual signature
is the insignia of the concept. 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
G
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
between the appellant and respondent no.9 when both stood
H embedded to their vow of matrimony. The impugned order is set
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 961

aside, however, the investigation by the NIA in respect of any A
matter of criminality may continue in accordance with law. [Paras
54-56] [989-D-H]
Per Dr. D. Y. Chandrachud, J. (Supplementing)
HELD: 1. The ambit of a habeas corpus petition is to trace
an individual who is stated to be missing. Once the individual B
appears before the court and asserts that as a major, she or he is
not under illegal confinement, which the court finds to be a free
expression of will, that would conclude the exercise of the
jurisdiction. [Para 14] [996-B]
Gian Devi v. Superintendent, Nari Niketan, Delhi (1976) C
3 SCC 234; Girish v. Radhamony K (2009) 16 SCC
360; Lata Singh v. State of U.P. (2006) 5 SCC 475:
2006 (3) Suppl. SCR 350; Bhagwan Dass v. State (NCT
of Delhi) (2011) 6 SCC 396: [2011] 6 SCR 330; Soni
Gerry v. Gerry Douglas (2018) 2 SCC 197; Kanu D
Sanyal v District Magistrate, Darjeeling (1973) 2 SCC
674: [1974] 1 SCR 621 – relied on
State of Orissa v. Ram Chandra Dev and Mohan Prasad
Singh Deo AIR (1964) SC 685; Keshav Singh (1965) 1
SCR 413; T K Rangarajan v. Government of T.N. (2003)
6 SCC 581: [2003] 2 Suppl. SCR 251; Roshan Deen v. E
Preeti Lal (2002) 1 SCC 100 : [2001] 5 Suppl. SCR
23; Dwarka Nath v. ITO, Special Circle D-ward, Kanpur
[1965] 3 SCR 536; Naresh Shridhar Nirajkar v. State
of Maharashtra [1966] 3 SCR 744; M V Elisabeth v
Harwan Investment and Trading (P) Ltd. 1993 Suppl. F
(2) SCC 433 : [1992] 1 SCR 1003 – referred to.
2. The schism between respondent no.9 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 respondent no.9. She has absolute G
autonomy over her person. Respondent no.9 appeared before
the High Court and stated that she was not under illegal
confinement. There was no warrant for the High Court to proceed
further in the exercise of its jurisdiction under Article 226. The
purpose of the habeas corpus petition ended. The High Court
H
962 SUPREME COURT REPORTS [2018] 4 S.C.R.

A entered into a domain which is alien to its jurisdiction in a habeas
corpus petition. The High Court did not take kindly to the conduct
of respondent no.9, noting that when it had adjourned the
proceedings to issue directions to enable her to pursue her
studies, it was at that stage that she appeared with the appellant
only to inform the court of their marriage. How respondent no.9
B
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. The exercise of
the jurisdiction to declare the marriage null and void, while
C entertaining a petition for habeas corpus, is plainly in excess of
judicial power. The High Court has transgressed the limits on its
jurisdiction in a habeas corpus petition. In the process, there has
been a serious transgression of constitutional rights. [Paras 16,
17] [998-D-G]
D 3. Deprivation of marital status is a matter of serious import
and must be strictly in accordance with law. The High Court in
the exercise of its jurisdiction under Article 226 ought not to
have embarked on the course of annulling the marriage. The
Constitution recognises the liberty and autonomy which inheres
in each individual. This includes the ability to take decisions on
E aspects which define one’s personhood and identity. The choice
of a partner whether within or outside marriage lies within the
exclusive domain of each individual. Intimacies of marriage lie
within a core zone of privacy, which is inviolable. The absolute
right of an individual to choose a life partner is not in the least
F affected by matters of faith. The Constitution guarantees to each
individual the right freely to practise, profess and propagate
religion. Choices of faith and belief as indeed choices in matters
of marriage lie within an area where individual autonomy is
supreme. The law prescribes conditions for a valid marriage. It
provides remedies when relationships run aground. Neither the
G state nor the law can dictate a choice of partners or limit the free
ability of every person to decide on these matters. They form
the essence of personal liberty under the Constitution. In deciding
whether appellant is a fit person for respondent no.9 to marry,
the High Court has entered into prohibited terrain. [Para 19]
H [999-C-G]
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 963

4. Article 16 of the Universal Declaration of Human Rights A
underscores the fundamental importance of marriage as an
incident of human liberty. [Para 20] [999-H]
5. 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 B
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 C
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 D
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. [Para 21] E
[1000-C-F]
Justice K. S. Puttaswamy v. Union of India (2017) 10
SCC 1; Common Cause (A Regd. Society) v. Union of
India (2018) 5 SCC 1 – followed
F
6. The High Court, in the present case, has treaded on an
area which must be out of bounds for a constitutional court. The
views of the High Court have encroached into a private space
reserved for women and men in which neither law nor the judges
can intrude. The High Court was of the view that at twenty four,
respondent no.9 “is weak and vulnerable, capable of being G
exploited in many ways”. 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 H
964 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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. The superior
courts, when they exercise their jurisdiction parens patriae do
so in the case of persons who are incapable of asserting a free
will such as minors or persons of unsound mind. The exercise of
B
that jurisdiction should not transgress into the area of determining
the suitability of partners to a marital tie. That decision rests
exclusively with the individuals themselves. Neither the state
nor society can intrude into that domain. [Para 23] [1001-C-F]
7. Whether or not respondent no.9 chose to marry appellant
C was irrelevant to the outcome of the habeas corpus petition. Even
if she were not to be married to him, all that she was required to
clarify was whether she was in illegal confinement. If she was
not, and desired to pursue her own endeavours, that was the end
of the matter in a habeas corpus petition. The fact that she decided
D to get married during the pendency of the proceedings had no
bearing on the outcome of the habeas corpus petition.
Constitutionally it could have no bearing on the outcome. [Para
25] [1002-D-E]
8. During the course of the proceedings, this Court by its
E interim order had allowed the National Investigation Agency to
assist the Court. Subsequently, NIA was permitted to carry out
an investigation. NIA may exercise its authority in accordance
with the law within the bounds of the authority conferred upon it
by statute. However, the validity of the marriage between
appellant and respondent no.9 shall not form the subject matter of
F 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. [Para 26] [1002-E-G]
Case Law Reference
G
Per Dipak Misra, CJI and A. M. Khanwilkar, J.
[1959] Suppl. SCR 727 referred to Para 22
[1974] 1 SCR 621 referred to Para 23
[2011] 13 SCR 185 referred to Para 25
H
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 965

[1989] 2 Suppl. SCR 597 referred to Para 34 A
[2007] 12 SCR 991 referred to Para 35
[2011] 4 SCR 1057 referred to Para 38
[1976] 1 SCR 906 referred to Para 38
[1986] 2 SCR 388 referred to Para 41 B
Per D. Y. Chandrachud, J.
AIR (1964) SC 685 referred to Para 12
[1965] 1 SCR 413 referred to Para 12
C
[2003] 2 Suppl. SCR 251 referred to Para 12
[2001] 5 Suppl. SCR 23 referred to Para 12
[1965] 3 SCR 536 referred to Para 12
[1966] 3 SCR 744 referred to Para 12
D
[1992] 1 SCR 1003 referred to Para 12
(1976) 3 SCC 234 relied on Para 14
(2009) 16 SCC 360 relied on Para 14
[2006] 3 Suppl. SCR 350 relied on Para 14
E
[2011] 6 SCR 330 relied on Para 14
(2018) 2 SCC 197 relied on Para 14
[1974] 1 SCR 621 relied on Para 14
(2017) 10 SCC 1 followed Para 22 F
(2018) 5 SCC 1 followed Para 22
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 366 of 2018.
From the Judgment and Order dated 24.05.2017 of the High Court
G
of Kerala at Ernakulam in Writ Petition (Crl.) No. 297 of 2016.
Kapil Sibal, Ms. Indira Jaising, Sr. Advs., Haris Beeran, Mushtaq
Salim, Usman Ghani Khan, Dev Prakash, K. P. Mohamad Shareef,
K.C. Naseer, A. Mohamed Yusuf, S. A. S. Alaudeen, M. Abdul Shukoor,
Ms. Pallavi Pratap, Ms. Nehmat Kaur, Advs. for the Appellant.
H
966 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Maninder Singh, ASG, Shyam Divan, Jaideep Gupta, Sr. Advs.,
Nalin Kohli, R. Balasubramanian, Prabhas Bajaj, Adv. Ankit Roy,
Ms. Nimisha Menon, Akshay Amritanshu, Neel Kamal, B. V. Balaram
Das, P. A. Noor Muhamed, Ms. Giffara S., Bilal Niamathulla, Madhavi
Divan, A. Raghunath, C. Rajendran, M.G. Yogamaya, Ms. Nidhi Khanna,
Ayush Puri, C. K. Sasi, Manukrishnan G., Ms. Nayantara Roy,
B
Ms. Aishwarya Bhati, T. Gopal, Ms. Vaidruti Mishra, Vishwajeet Singh,
Jaideep Singh, Rakesh Mudgil, Gp. Capt. Karan Singh Bhati, Sayid
Marzook Bafari, Faisal M. Aboobaker, Towseef Ahmad Dar, P. V. Dinesh,
Ms. Swarupama Chaturvedi, Ms. Bhawna Singh Dev, B. N. Dubey,
Advs. for the Respondents.
C The Judgments of the Court were delivered by
DIPAK MISRA, CJI [for himself and A. M. Khanwilkar, J.]
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
D 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
E recognize the other’s identity. That is reflection of cruelty which the
law does not countenance. 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
F 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
G 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.
2. On 08.03.2018, this Court had allowed the appeal passing the
H following order:-
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 967
[DIPAK MISRA, CJI]

“Leave granted. A
Heard Mr. Kapil Sibal and Ms. Indira Jaising, learned senior
counsel along with Mr. Haris Beeran, learned counsel for the
appellant, Mr. Maninder Singh, learned Additional Solicitor General
for the National Investigation Agency (NIA) and Mr. Shyam
Divan, learned senior counsel along with Ms. Madhavi Divan, B
learned counsel for respondent No.1.
The reasoned judgment will follow. The operative part of
the order reads as follows:-
Considering the arguments advanced on both sides, in the
facts of the present case, we hold that the High Court should not C
have annulled the marriage between appellant No.1, Shafin Jahan
and respondent No.9, Hadiya alias Akhila Asokan, in a Habeas
Corpus petition under Article 226 of the Constitution of India.
We say so because in the present appeal, by special leave, we
had directed the personal presence of Hadiya alias Akhila
Asokan; she appeared before this Court on 27th November, 2017, D
and admitted her marriage with appellant No.1.
In view of the aforesaid, the appeal stands allowed. The
judgment and order passed by the High Court is set aside.
Respondent No.9, Hadiya alias Akhila Asokan is at liberty to
pursue her future endeavours according to law. We clarify that E
the investigations by the NIA in respect of any matter of
criminality may continue in accordance with law.”
3. Presently, we proceed to state the reasons.
4. The facts which are necessary to be stated are that Ms. Akhila
alias Hadiya, respondent No.9 herein, aged about 26 years at present, F
the only child of Sh. Asokan K. M., respondent No.1 herein, 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
G
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,
respondent No.1 herein. On 6th December, 2015, Hadiya’s paternal H
968 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 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
B
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’. The respondent No.1 was further informed
that Hadiya was inspired by someone to change her faith.
C 5. 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
D 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
E 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.
6. On 14.01.2016, when the case came up for admission, the
F Division Bench directed the Government pleader to get instructions
regarding the action, if any, taken on the aforesaid complaint of Asokan.
Thereafter, on 19.01.2016, when the case was taken up for further
consideration, Hadiya appeared through a lawyer and filed an application
for impleadment being I. A. No. 792 of 2016. The said application for
G impleadment was allowed and Hadiya was impleaded as a respondent.
An affidavit dated 26.11.2016 was filed on her behalf stating, inter alia,
the facts and circumstances under which she had left her house. The
aforesaid affidavit mentioned that she had communicated to her father
as well as Director General of Police by registered letter regarding the
actual state of affairs. Further, she along with one Sainaba filed Writ
H
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 969
[DIPAK MISRA, CJI]

Petition being W.P. (C) No. 1965 of 2016 seeking protection from police A
harassment.
7. The Division Bench in W.P. (Criminal) No. 25 of 2016
persuaded Hadiya to go along with her father, Asokan, to her parental
house but the said persuasions were all in vain as Hadiya was not willing
to go with her father. The Division Bench, thereafter, interacted with B
Sainaba who expressed her unequivocal willingness to the Division Bench
to accommodate Hadiya in “Satyasarani” institution and that Sainaba
would render all necessary help to Hadiya to pursue her internship in
BHMS degree course. As Hadiya had taken a stand that she wanted to
join Satyasarani and she was not, in any case, willing to go back to her
parental home along with Asokan, the Division Bench permitted Hadiya C
to stay with Sainaba at her house till she joined Satyasarani. The Division
Bench thereafter adjourned the case for further hearing directing to
produce proof regarding admission of Hadiya in Satyasarani.
8. The case was taken up for consideration by the Division Bench
where the counsel appearing on behalf of Hadiya produced documents D
to show that Hadiya had got admission on 20.01.2016 in an institution,
namely, ‘Markazul Hidaya Sathyasarani Educational & Charitable Trust’
at Karuvambram, Manjeri in Malappuram District. The counsel for
Hadiya also submitted before the writ court that Hadiya was staying in
the hostel of the said institution. E
9. The Division Bench, vide judgment dated 25.01.2016, directed
as follows:-
“8. Under the above mentioned circumstances, we are convinced
that the alleged detenue is not under any illegal confinement.
She is at present staying in the above said institution on her own F
wish and will. She is not under illegal confinement. Therefore,
there exists no circumstances warranting interference for
issuance of any writ of Habeas Corpus. Hence the original petition
is hereby disposed of by recording the fact that the alleged detenue
is staying in the above said institution on her own free will. It will G
be left open to the petitioner and her family members to make
visit to her at the above institution, subject to regulations if any
regarding visiting time.”
10. In view of the aforesaid order, the writ petition filed by Hadiya
was withdrawn.
H
970 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 11. When the matter stood thus, the 1st respondent filed a second
Writ Petition (Criminal) No. 297 of 2016 alleging that his daughter was
likely to be transported out of the country and the High Court, vide interim
order, directed the respondent to keep her under surveillance and to
ensure that she was not taken out of the country without further orders
of the Court. The averments made by the father in the writ petition need
B
not be stated in detail. Suffice it to say that Hadiya alias Akhila
categorically declined to go with her parents and stated in the affidavit
filed by her that she was not being permitted to interact with anyone.
Hadiya further stated that she wanted to reside at a place of her choice
and that she had not been issued a passport and, therefore, there was no
C likelihood of her being taken to Syria. The High Court, considering the
affidavit, passed the following order:-
“After hearing learned counsel on both sides, we are of the opinion
that in the light of the finding entered by this court in the earlier
round of litigation that this Court cannot compel the petitioner’s
D daughter to go and reside with her parents and that she is not in
the illegal custody of anyone, this court cannot any longer direct
that the petitioner’s daughter should continue to reside at
Santhinikethan Hostel, Pachalam. When we asked the
petitioner’s daughter as to whether she is willing to appear on
another day, she submitted that she will appear on the next hearing
E date. Learned counsel for the detenue also submitted that the
detenue will be present in person on the next hearing date. We
accordingly permit the detenue to reside at a place of her choice.
We also record the statement of Ms. Akhila that she proposes to
reside with the seventh respondent, Smt. A.S.Sainaba, whose
F address is mentioned in the instant writ petition. Sri. P.K.Ibrahim,
learned counsel appearing for the seventh respondent submitted
that the seventh respondent will cause production of the
petitioner’s daughter on the next hearing date, if she proposes to
reside with her. If the petitioner’s daughter proposes to shift her
residence and to reside elsewhere, we shall inform that fact to
G the Deputy Superintendent of Police, Perinthalmanna in writing
and furnish her full residential address and the telephone number
if any over which she can be contacted. Call on 24.10.2016. The
Deputy Superintendent of Police, Perinthalmanna shall cause
production of the petitioner’s daughter on that day. It will be
H open to the parents of Ms. Akhila to meet and interact with her.”
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 971
[DIPAK MISRA, CJI]

12. On the basis of the aforesaid order passed by the High Court, A
Hadiya was permitted to reside with the 7th respondent. On 14.11.2016,
the counsel for the writ petitioner before the High Court expressed serious
apprehension regarding the continued residence of his daughter in the
house of the 7th respondent therein. On 19.12.2016, the High Court noted
that she had not completed her course and acquired competence to
B
practise homeopathy and, accordingly, expressed the opinion that she
should complete her House Surgeoncy without delay and obtain eligibility
to practice. A statement was made on her behalf that she has to complete
her House Surgeoncy at the Shivaraj Homeopathic Medical College,
Salem which has a hostel for women where she was willing to reside for
the purpose of completing her House Surgeoncy. On the basis of the C
aforesaid, the High Court passed the following order:-
“We have heard the learned Senior counsel Sri. S.Sreekumar,
who appears for the detenue. We have perused the affidavit
dated 26.11.2016 filed by the detenue producing documents, Exts.
R8(d) and R8(e). We are not prepared to rely on Ext.R8(d) which D
purports to make it clear as though a registered Homeopathic
Medical Practitioner has permitted the detenue to work as a
trainee in Homeopathic Medicine on a remuneration of Rs.2000/
- per month for her day today expenses. We fail to understand
how the detenue, who has not obtained a degree in Homeopathy
can be permitted to train under him. The detenue has admittedly E
not completed her House Surgeoncy or obtained eligibility to
practice. Therefore, it is only appropriate that she completes her
House Surgeoncy without further delay and obtains eligibility to
practice Homeopathic Medicine. Her Senior counsel Sri.
S.Sreekumar informs us that, the detenue is desirous of F
completing her House Surgeoncy. However, we place on record
our dissatisfaction at the continued residence of the detenue with
the 7th respondent, who is a stranger. The counsel for the petitioner
also expresses anxiety and concern at her continued residence
with the 7th respondent. He is anxious about the safety and well
being of the detenue. His anxiety and concern as the parent of G
an only daughter is understandable. Therefore, it is necessary
that the detenue shifts her residence to a more acceptable place,
without further delay. According to the learned Senior counsel
Sri.S.Sreekumar, she has to complete her House Surgeoncy at
the Shivaraj Homeopathic Medical College, Salem. The college H
972 SUPREME COURT REPORTS [2018] 4 S.C.R.

A has a hostel for girl students where she is willing to reside and
complete her House Surgeoncy. The petitioner offers to bear
the expenses for her education and stay at the Medical College
Hostel. He offers to escort her to the Medical College and to
admit her into the Hostel there. The detenue is also, according to
the learned Senior counsel, willing to accompany her.
B
2. In view of the above, there shall be a direction to the detenue
to appear before this Court at 10.15 a.m. on 21.12.2016. The
petitioner shall also be present in person in Court on the said
date. The petitioner who is stated to be in possession of the
certificates of the detenue shall bring such certificates also to
C Court. We shall pass further orders in the matter, regarding the
manner in which the detenue is to be taken to the Medical College
and admitted to the ladies hostel, on 21.12.2016.
Post on 21.12.2016.”
D 13. On 21.12.2016, Hadiya appeared before the High Court and
a statement was made that she had entered into marriage with Shafin
Jahan, the appellant herein. The High Court, at that juncture, as the
order would reflect, noted that her marriage was totally an unexpected
event and proceeded to ascertain the veracity of the statement made. It
has recorded its displeasure as to the manner in which the entire exercise
E was accomplished. It passed a detailed order on 21.12.2016. The relevant
part of the order reads thus:-
“This court exercising its Parens Patriae jurisdiction is anxious
and concerned about the safety of the detenue and her well
being, viewed especially in the light of the allegations made in
F the Writ Petition and the continued obstinance of the detenue to
return to her parents. The person who is stated to have got
married to the detenue has appeared before us today, for the
first time. He claims to be a graduate and a person who is
employed in the Gulf. It is stated that, he is desirous of taking the
G detenue out of the country. It was precisely the said apprehension
that was expressed by her father in the proceedings before this
Court on the earlier occasion. This Court has on the said occasion
recorded the fact that since she was not possessed of a Passport,
there was no likelihood of her being taken to Syria. The question
that crops up now is whether the marriage that has been allegedly
H
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 973
[DIPAK MISRA, CJI]

performed is not a device to transport her out of this country. A
We are not aware of the identity of the person who is alleged to
have got married to the detenue. We are not aware of the
antecedents of the said person or his family background. The
address mentioned in the marriage certificate produced shows
that he is from Kollam. In what manner he has come into contact
B
with detenue and under what circumstances, the detenue has
agreed to get married to a stranger like him are matters that
require to be probed thoroughly. The marriage certificate shows
that the marriage was performed by the Khazi at the house of
the 7th respondent, Srambikal House, Puthur. Why the marriage
was conducted at her house is not clear. Unless the above C
questions are answered, it cannot be accepted that the detenue
is in safe hands. This Court exercising Parens Patriae jurisdiction
has a duty to ensure that young girls like the detenue are not
exploited or transported out of the country. Though the learned
Senior Counsel has vociferously contended that the detenue is a
D
person who has attained majority, it is necessary to bear in mind
the fact that the detenue who is a female in her twenties is at a
vulnerable age. As per Indian tradition, the custody of an
unmarried daughter is with the parents, until she is properly
married. We consider it the duty of this Court to ensure that a
person under such a vulnerable state is not exposed to further E
danger, especially in the circumstances noticed above where even
her marriage is stated to have been performed with another
person, in accordance with Islamic religious rites. That too, with
the connivance of the 7th respondent with whom she was
permitted to reside, by this Court. 8. We place on record our
F
absolute dissatisfaction at the manner in which the marriage if at
all one has been performed, has been conducted. The 7th
respondent having been a party to these proceedings had a duty
to at least inform this Court of the same, in advance. This Court
had relying on her credentials and assurance, permitted the
detenue to accompany her and to live with her. We would have G
expected a reasonable litigant, which includes the detenue also
who as we have noticed earlier, is represented through an eminent
Senior Counsel of this Court, to have informed this Court and
obtained permission from this Court before such a drastic course
was undertaken. Considering the manner in which the marriage
H
974 SUPREME COURT REPORTS [2018] 4 S.C.R.

A has been conducted, the secrecy surrounding the said transaction
and also the hurried manner in which the whole exercise was
completed, the entire episode is shrouded in suspicion. Unless
the suspicion is cleared the detenue cannot be permitted to go
with the person who is seen to be accompanying her now. In
view of the above, the following directions are issued.
B
1) The first respondent is directed to escort the detenue and to
have her accommodated at the S.N.V.Sadanam Hostel, Chittoor
Road, Ernakulam, until further orders. The first respondent shall
ensure that she is not provided the facility of possessing or using
a mobile phone. The petitioner and the mother shall be at liberty
C to meet her according to the rules and regulations of the hostel.
No other person is permitted to meet her.
2) The first respondent shall cause an investigation to be
conducted into the education, family background, antecedents
and other relevant details of Sri. Shafin Jahan who is stated to
D be the bridegroom of the alleged marriage that is stated to have
been conducted on 19.12.2016 as evidenced by the certificate
dated 20.12.2016 produced before us. The first respondent shall
also enquire into the circumstances surrounding the conduct of
such marriage, the persons who were involved in the conduct of
E the same the organization that has issued the marriage certificate,
as well as their antecedents. A report of such investigation shall
be placed before us before the next posting date of this case.
The 4th respondent shall oversee the investigation and see that
all relevant details are unearthed and placed before us including
any links with extremist organizations, of which allegations are
F made in the Writ Petition.
3) The Secretary, Othukkungal Grama Panchayat is directed
not to issue the marriage certificate sought for by the applicants
Shafine Jahan and Hadiya as per receipt dated 20.12.2016,
without further orders from this Court. The petitioner shall bear
G the expenses for the accommodation of the detenue at the hostel.
4) Post on 6.1.2017.”
14. Thereafter, the matter was taken up on various dates by the
High Court and eventually, by the impugned judgment and order, it opined
that a girl aged 24 years is weak and vulnerable and capable of being
H
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 975
[DIPAK MISRA, CJI]

exploited in many ways and thereafter, the Court, exercising the parens A
patriae jurisdiction, observed that it was concerned with the welfare of
the girl of her age. It has been further observed by the High Court that
the duty is cast on it to ensure the safety of at least the girls who are
brought before it and the said duty can only be discharged by ensuring
that the custody of Akhila alias Hadiya should be given to her parents.
B
The High Court further directed to the following effect:-
“She shall be cared for, permitted to complete her House
Surgeoncy Course and made professionally qualified so that she
would be in a position to stand independently on her own two
legs. Her marriage being the most important decision in her life,
can also be taken only with the active involvement of her parents. C
The marriage which is alleged to have been performed is a sham
and is of no consequence in the eye of law. The 7th respondent
and her husband had no authority or competence to act as the
guardian of Ms. Akhila and to give her in marriage. Therefore,
the alleged marriage is null and void. It is declared to be so.” D
15. The High Court also directed that a police officer of the rank
of Sub-Inspector should escort Akhila alias Hadiya from the hostel to
her father’s house and the Superintendent of Police, Respondent No.2
therein, should maintain surveillance over them to ensure their continued
safety. That apart, the High Court issued the following directions:- E
“iii) The 4th respondent shall take over the investigation of Crime
No. 21 of 2016 of Perinthalmanna Police Station and shall have
a comprehensive investigation conducted co-ordinating the
investigation in Crime No.510 of 2016 of Cherpulassery Police
Station which has been registered into the forcible conversion of F
Ms.Athira which is the subject matter of W.P.(Crl.) No. 235 of
2016 of this Court. The 4th respondent shall also investigate the
activities of the organizations that are involved in this case of
which reference has been made by us above. Such investigation
shall be completed as expeditiously as possible and the persons
who are found to be guilty shall be brought to the book. G
iv) The 4th respondent shall conduct a full-fledged enquiry into
the lapses on the part of the Investigating Officer in this case
and shall, if necessary, pursue departmental proceedings against
the Officer concerned.”
H
976 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 16. Against the aforesaid order, the present appeal, by special
leave, was filed by Shafin Jahan seeking permission to file the special
leave which is granted by this Court.
17. This Court, vide order dated 4.8.2017, asked Mr. Maninder
Singh, learned Additional Solicitor General, to accept notice on behalf of
B the Respondent No.6, the National Investigating Agency (NIA).
Thereafter, various orders were passed by this Court with regard to
investigation which are not necessary to narrate. It is worthy to mention
that on 30.10.2017, this Court directed the 1st respondent to produce his
daughter before this Court on 27.11.2017. On the date fixed, Hadiya
was produced before this Court and a prayer was made to interact with
C Hadiya in camera and not in open Court but repelling the said submission,
the following order was passed:-
“After due deliberation, we thought it appropriate to interact
with Akhila @ Hadiya and we have accordingly interacted with
her in Court. We were told that though she can communicate in
D English, she may not be able to effectively articulate in that
language. Hence, we requested Mr. V. Giri, learned senior
counsel, who also represents the State of Kerala to assist in
translating the questions posed to her in Court and the answers
given by her.
E The range of questions that we posed basically pertained
to her qualifications, interest in studies, perception of life and
what she intends to do in future. In response to our queries, she
responded by stating that she has passed Class X from Higher
Secondary School in K.V. Puram, Vaikom in Kottayam District
F and thereafter she was prosecuting her BHMS course in Shivaraj
Homeopathy Medical College in Salem in the State of Tamil
Nadu. She has also stated that she intends to continue her
internship/ housemanship which she had left because of certain
reasons and her ambition is to become a full-fledged homeopathic
doctor. She has expressed her desire to stay in the hostel and
G complete the course in the said college, if a seat is made available.
In the above view, we direct, as desired by her, that she be
taken to Salem so as to enable her to pursue her internship/
housemanship. We also direct the college to admit her and to
allow the facility of a room or a shared room in the hostel as per
H
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 977
[DIPAK MISRA, CJI]

practice to enable her to continue her internship/housemanship A
afresh. Be it stated, she herself has stated that the duration of
the internship/housemanship is likely to be for 11 months. If any
formality is to be complied with, the college shall communicate
with the university and the university shall accede to the same.
Our directions are to be followed in letter and spirit by all
B
concerned. Needless to say, when she stays in the hostel, she
will be treated like any other student and will be guided by the
hostel rules. If necessary, the expenses for pursuing the course
and for the hostel shall be borne by the State of Kerala. The
Dean of the College shall approach this Court if there is any
problem with regard to any aspect. ‘Any problem’ does not mean, C
admission in the hostel or continuance in the course.
We direct the State of Kerala to make all necessary
arrangements so that she can travel to Salem at the earliest. She
has made a request that she should be accompanied by
policewomen in plainclothes. The State shall attend to the prayer D
appropriately. If any security problem arises, the State of Tamil
Nadu shall make local arrangements for the same. We have
been told that she is presently staying in Kerala Bhawan at New
Delhi. Mr. V. Giri, learned senior counsel assures this Court that
she shall be permitted to stay in Kerala Bhawan till she moves to
Salem. E

We make it clear that the NIA investigation shall continue
in accordance with law.”
18. The aforesaid adumbration calls for restatement of the law
pertaining to writ of habeas corpus which has always been considered F
as ‘a great constitutional privilege’ or ‘the first security of civil liberty’.
The writ is meant to provide an expeditious and effective remedy against
illegal detention, for such detention affects the liberty and freedom of
the person who is in confinement.
19. In P. Ramanatha Aiyar’s Law Lexicon (1997 Edn.), while G
defining “habeas corpus”, apart from other aspects, the following has
been stated:-
“The ancient prerogative writ of habeas corpus takes its name
from the two mandatory words habeas corpus, which it contained
at the time when it, in common with all forms of legal process,
H
978 SUPREME COURT REPORTS [2018] 4 S.C.R.

A was framed in Latin. The general purpose of these writs, as
their name indicates, was to obtain the production of an individual.”
20. In Cox v. Hakes1, Lord Halsbury observed as under: -
“For a period extending as far back as our legal history, the writ
of habeas corpus has been regarded as one of the most important
B safeguards of the liberty of the subject. If upon the return to that
writ it was adjudged that no legal ground was made to appear
justifying detention, the consequence was immediate release from
custody. If release was refused, a person detained might make a
fresh application to every judge or every court in turn, and each
C court or judge was bound to consider the question independently
and not to be influenced by the previous decisions refusing
discharge. If discharge followed, the legality of that discharge
could never be brought in question. No writ of error or demurrer
was allowed.”
21. In Secretary of State for Home Affairs v. O’Brien2, it has
D
been observed that:-
“… It is perhaps the most important writ known to the
constitutional law of England, affording as it does a swift and
imperative remedy in all cases of illegal restraint or confinement.
It is of immemorial antiquity, an instance of its use occurring in the
E thirty-third year of Edward I. It has through the ages been jealously
maintained by the courts of law as a check upon the illegal
usurpation of power by the executive at the cost of the liege.”
22. In Ranjit Singh v. State of Pepsu (now Punjab) 3, after
referring to Greene v. Secy. of States for Home Affairs4, this Court
F ruled:-
“4. … the whole object of proceedings for a writ of habeas
corpus is to make them expeditious, to keep them as free from
technicality as possible and to keep them as simple as possible.”
The Bench quoted Lord Wright who, in Greene’s case, had stated:-
G “…The incalculable value of habeas corpus is that it enables the
immediate determination of the right to the applicant’s freedom.”
1
(1890) 15 AC 506
2
[1923] AC 603 : [1923] ALL E.R. Rep. 442 (HL)
3
AIR 1959 SC 843
4
H [1942] AC 284 : [1941] 3 All ER 388 (HL)
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 979
[DIPAK MISRA, CJI]

23. In Kanu Sanyal v. District Magistrate, Darjeeling and A
Others5, a Constitution Bench, after adverting to the brief history of the
writ of habeas corpus, opined that it is essentially a procedural writ that
deals with the machinery of justice and not a substantive law. The
object of the writ is to secure release of a person who is illegally restrained
of his liberty. The Court further elaborated:-
B
“… The writ of habeas corpus is one of the most ancient writs
known to the common law of England. It is a writ of immemorial
antiquity and the first threads of its origin are woven deeply within
the “seamless web of history” and they are concealed and perhaps
untraceable among countless incidents that constituted the total
historical pattern.” C

24. Tracing the history, the Court proceeded to explicate:-
“The writ of habeas corpus cum causa made its appearance in
the early years of the fourteenth century. It not merely
commanded the Sheriff to “have the body” of the person therein D
mentioned like its predecessor but added the words “with the
cause of the arrest and detention”. The person who had the
custody of a prisoner was required by this writ to produce him
before the Court together with the ground for the detention. The
writ thus became a means of testing the legality of the detention
and in this form it may be regarded as the immediate ancestor of E
the modern writ of habeas corpus. The writ of habeas corpus
cum causa was utilised by the common law courts during the
fifteenth century as an accompaniment of the writs of certiorari
and privilege to assert their jurisdiction against the local and
franchise courts.” F
25. In Ware v. Sanders6, a reference was made to the Law of
Habeas Corpus by James A Scott and Charles C. Roe of the Chicago
Bar (T.H. Flood & Company, Publishers, Chicago, Illinois, 1923) where
the authors have dealt with the aspect of Habeas Corpus. It reads as
under:- G
“A writ of habeas corpus is a writ of right of very ancient origin,
and the preservation of its benefit is a matter of the highest
importance to the people, and the regulations provided for its
5
(1973) 2 SCC 674
6
146 Iowa 233 : 124 NW 1081 (1910) H
980 SUPREME COURT REPORTS [2018] 4 S.C.R.

A employment against an alleged unlawful restraint are not to be
construed or applied with over technical nicety, and when
ambiguous or doubtful, should be interpreted liberally to promote
the effectiveness of the proceeding.”
(See Ummu Sabeena v. State of Kerala and Others7)
B 26. In Ummu Sabeena, the Court further ruled that the principle
of habeas corpus has been incorporated in our constitutional law and in
a democratic republic like India where judges function under a written
Constitution and which has a chapter of fundamental rights to protect
individual liberty, the judges owe a duty to safeguard the liberty not only
C of the citizens but also of all persons within the territory of India; and the
same exercise of power can be done in the most effective manner by
issuing a writ of habeas corpus.
27. Thus, the pivotal purpose of the said writ is to see that no one
is deprived of his/her liberty without sanction of law. It is the primary
D duty of the State to see that the said right is not sullied in any manner
whatsoever and its sanctity is not affected by any kind of subterfuge.
The role of the Court is to see that the detenue is produced before it, find
out about his/her independent choice and see to it that the person is
released from illegal restraint. The issue will be a different one when the
detention is not illegal. What is seminal is to remember that the song of
E liberty is sung with sincerity and the choice of an individual is appositely
respected and conferred its esteemed status as the Constitution
guarantees. It is so as the expression of choice is a fundamental right
under Articles 19 and 21 of the Constitution, if the said choice does not
transgress any valid legal framework. Once that aspect is clear, the
F enquiry and determination have to come to an end.
28. 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 writ court has taken
exception to the marriage of the respondent No. 9 herein with the
G appellant. It felt perturbed. As we see, there was nothing to be taken
exception to. Initially, Hadiya had declined to go with her father and
expressed her desire to stay with the respondent No.7 before the High
Court and in the first writ it had so directed. The adamantine attitude of
the father, possibly impelled by obsessive parental love, compelled him
7
H (2011) 10 SCC 781
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 981
[DIPAK MISRA, CJI]

to knock at the doors of the High Court in another Habeas Corpus petition A
whereupon the High Court directed the production of Hadiya who
appeared on the given date along with the appellant herein whom the
High Court calls a stranger. But Hadiya would insist that she had entered
into marriage with him. True it is, she had gone with the respondent
No.7 before the High Court but that does not mean and can never mean
B
that she, as a major, could not enter into a marital relationship. But, 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 C
she wished to.
29. The High Court further erred by reflecting upon the social
radicalization and certain other aspects. In a writ of habeas corpus,
especially in the instant case, it was absolutely unnecessary. If there
was any criminality in any sphere, it is for the law enforcing agency to D
do the needful but as long as the detenue has not been booked under law
to justify the detention which is under challenge, the obligation of the
Court is to exercise the celebrated writ that breathes life into our
constitutional guarantee of freedom. The approach of the High Court on
the said score is wholly fallacious.
E
30. The High Court has been swayed away by the strategy, as it
thought, adopted by the respondent No.7 before it in connivance with
the present appellant and others to move Hadiya out of the country.
That is not within the ambit of the writ of Habeas Corpus. The future
activity, if any, is required to be governed and controlled by the State in
accordance with law. The apprehension was not within the arena of F
jurisdiction regard being had to the lis before it.
31. Another aspect which calls for invalidating the order of the
High Court is the situation in which it has invoked the parens patriae
doctrine. Parens Patriae in Latin means “parent of the nation”. In law,
it refers to the power of the State to intervene against an abusive or G
negligent parent, legal guardian or informal caretaker, and to act as the
parent of any child or individual who is in need of protection. “The parens
patriae jurisdiction is sometimes spoken of as ‘supervisory’”8.
8
P.W. Yong, C Croft and ML Smit, On Equity.
H
982 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 32. The doctrine of Parens Patriae has its origin in the United
Kingdom in the 13th century. It implies that the King as the guardian of
the nation is under obligation to look after the interest of those who are
unable to look after themselves. Lindley L.J. in Thomasset v. Thomasset9
pointed out that in the exercise of the Parens Patriae jurisdiction, “the
rights of fathers and legal guardians were always respected, but
B
controlled to an extent unknown at common law by considering the real
welfare.” The duty of the King in feudal times to act as Parens Patriae
has been taken over in modern times by the State.
33. Black’s Law Dictionary defines ‘Parens Patriae’ as:-
C “1. The State regarded as a sovereign; the state in its capacity
as provider of protection to those unable to care for themselves.
2. A doctrine by which a government has standing to prosecute
a lawsuit on behalf of a citizen, especially on behalf of someone
who is under a legal disability to prosecute the suit. The State
D ordinarily has no standing to sue on behalf of its citizens, unless
a separate, sovereign interest will be served by the suit.”
34. In Charan Lal Sahu v. Union of India10, the Constitution
Bench, while delving upon the concept of parens patriae, stated:-
“35. … In the “Words and Phrases” Permanent Edition, Vol.
E 33 at page 99, it is stated that parens patriae is the inherent
power and authority of a legislature to provide protection to the
person and property of persons non sui juris, such as minor,
insane, and incompetent persons, but the words parens patriae
meaning thereby ‘the father of the country’, were applied
F originally to the King and are used to designate the State
referring to its sovereign power of guardinaship over persons
under disability. (emphasis supplied) Parens patriae jurisdiction,
it has been explained, is the right of the sovereign and imposes a
duty on sovereign, in public interest, to protect persons under
disability who have no rightful protector. The connotation of the
G term parens patriae differs from country to country, for instance,
in England it is the King, in America it is the people, etc. The
Government is within its duty to protect and to control persons
under disability. Conceptually, the parens patriae theory is the
9
[1894] P 295
10
H (1990) 1 SCC 613
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 983
[DIPAK MISRA, CJI]

obligation of the State to protect and takes into custody the rights A
and the privileges of its citizens for dischargings its obligations.
Our Constitution makes it imperative for the State to secure to
all its citizens the rights guaranteed by the Constitution and where
the citizens are not in a position to assert and secure their rights,
the State must come into picture and protect and fight for the
B
rights of the citizens. …”
35. In Anuj Garg and Others v. Hotel Association of India
and others11, a two-Judge Bench, while dealing with the constitutional
validity of Section 30 of the Punjab Excise Act, 1914 prohibiting
employment of “any man under the age of 25 years” or “any woman” in
any part of such premises in which liquor or intoxicating drug is consumed C
by the public, opined thus in the context of the parens patriae power of
the State:-
“29. One important justification to Section 30 of the Act is parens
patriae power of State. It is a considered fact that use of parens
patriae power is not entirely beyond the pale of judicial scrutiny. D
30. Parens patriae power has only been able to gain definitive
legalist orientation as it shifted its underpinning from being merely
moralist to a more objective grounding i.e. utility. The subject-
matter of the parens patriae power can be adjudged on two counts:
(i) in terms of its necessity, and E
(ii) assessment of any trade-off or adverse impact, if any.
This inquiry gives the doctrine an objective orientation and
therefore prevents it from falling foul of due process challenge.
(See City of Cleburnev.Cleburne Living Center12)”
36. Analysing further, the Court ruled that the parens patriae F
power is subject to constitutional challenge on the ground of right to
privacy also. It took note of the fact that young men and women know
what would be the best offer for them in the service sector and in the
age of internet, they would know all pros and cons of a profession. The
Court proceeded to state:- G
“31. … It is their life; subject to constitutional, statutory and
social interdicts—a citizen of India should be allowed to live her
life on her own terms.”
11
(2008) 3 SCC 1
12
473 US 432, 439-41: 105 S Ct 3249 : 87 L Ed 2d 313 (1985) H
984 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 37. Emphasizing on the right of self-determination, the Court held:-
“34. The fundamental tension between autonomy and security is
difficult to resolve. It is also a tricky jurisprudential issue. Right
to self-determination is an important offshoot of gender justice
discourse. At the same time, security and protection to carry
B out such choice or option specifically, and state of violence-
free being generally is another tenet of the same movement. In
fact, the latter is apparently a more basic value in comparison to
right to options in the feminist matrix.”
38. In Aruna Ramachandra Shanbaug v. Union of India13,
C the Court, after dealing with the decision in State of Kerala v. N.M.
Thomas14 wherein it has been stated by Mathew, J. that “the Court also
is ‘State’ within the meaning of Article 12 (of the Constitution) ...”,
opined:-
“130. In our opinion, in the case of an incompetent person who is
D unable to take a decision whether to withdraw life support or
not, it is the Court alone, as parens patriae, which ultimately
must take this decision, though, no doubt, the views of the near
relatives, next friend and doctors must be given due weight.”
39. Constitutional Courts in this country exercise parens patriae
E jurisdiction in matters of child custody treating the welfare of the child
as the paramount concern. There are situations when the Court can
invoke the parens patriae principle and the same is required to be invoked
only in exceptional situations. We may like to give some examples. For
example, where a person is mentally ill and is produced before the court
in a writ of habeas corpus, the court may invoke the aforesaid doctrine.
F On certain other occasions, when a girl who is not a major has eloped
with a person and she is produced at the behest of habeas corpus filed
by her parents and she expresses fear of life in the custody of her parents,
the court may exercise the jurisdiction to send her to an appropriate
home meant to give shelter to women where her interest can be best
G taken care of till she becomes a major.
40. In Heller v. Doe15, Justice Kennedy, speaking for the U.S.
Supreme Court, observed:-
13
(2011) 4 SCC 454
14
(1976) 2 SCC 310
H 15
509 US 312 (1993)
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 985
[DIPAK MISRA, CJI]

“The State has a legitimate interest under its Parens Patriae A
powers in providing care to its citizens who are unable to care
for themselves.”
41. The Supreme Court of Canada in E. (Mrs.) v. Eve16 observed
thus with regard to the doctrine of Parens Patriae:-
“The Parens Patriae jurisdiction for the care of the mentally B
incompetent is vested in the provincial superior courts. Its exercise
is founded on necessity. The need to act for the protection of
those who cannot care for themselves. The jurisdiction is broad.
Its scope cannot be defined. It applies to many and varied
situations, and a court can act not only if injury has occurred but C
also if it is apprehended. The jurisdiction is carefully guarded
and the courts will not assume that it has been removed by
legislation.
While the scope of the parens partiae jurisdiction is unlimited,
the jurisdiction must nonetheless be exercised in accordance with
D
its underlying principle. The discretion given under this jurisdiction
is to be exercised for the benefit of the person in need of protection
and not for the benefit of others. It must at all times be exercised
with great caution, a caution that must increase with the
seriousness of the matter. This is particularly so in cases where
a court might be tempted to act because failure to act would risk E
imposing an obviously heavy burden on another person.”
42. The High Court of Australia in Secretary, Department of
Health and Community Service v. J.W.B. and S.M.B.17, speaking
through Mason C.J., Dawson, Toohey and Gaudron JJ., has made the
following observations with regard to the doctrine:- F
“71. No doubt the jurisdiction over infants is for the most part
supervisory in the sense that the courts are supervising the
exercise of care and control of infants by parents and guardians.
However, to say this is not to assert that the jurisdiction is
essentially supervisory or that the courts are merely supervising
G
or reviewing parental or guardian care and control. As already
explained, the Parens Patriae jurisdiction springs from the direct
responsibility of the Crown for those who cannot look after
themselves; it includes infants as well as those of unsound mind.”
16
[1986] 2 SCR 388
17
[1992] HCA 15 (MARION’S Case) : (1992) 175 CLR 218 H
986 SUPREME COURT REPORTS [2018] 4 S.C.R.

A 43. Deane J. in the same case stated the following:-
“4… Indeed, in a modern context, it is preferable to refer to the
traditional Parens Patriae jurisdiction as “the welfare jurisdiction”
and to the “first and paramount consideration” which underlies
its exercise as “the welfare principle”.”
B 44. Recently, the Supreme Court of New South Wales, in the
case of AC v. OC (a minor)18, has observed:-
“36. That jurisdiction, protective of those who are not able to
take care of themselves, embraces (via different historical routes)
minors, the mentally ill and those who, though not mentally ill,
C are unable to manage their own affairs: Re Eve [1986] 2 SCR
388 at 407-417; Court of Australia in Secretary, Department of
Health and Community Services v. JWB and SMB (Marion’s
Case (1992) 175 CLR 218 at 258; PB v. BB [2013] NSWSC
1223 at [7]-[8], [40]-[42], [57]-[58] and [64]-[65].
D 37. A key concept in the exercise of that jurisdiction is that it
must be exercised, both in what is done and what is left undone,
for the benefit, and in the best interest, of the person (such as a
minor) in need of protection.”
45. Thus, the Constitutional Courts may also act as Parens
E Patriae so as to meet the ends of justice. But the said exercise of power
is not without limitation. The courts cannot in every and any case invoke
the Parens Patriae doctrine. The said doctrine has to be invoked 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
F of the court that the said parties have either no parent/legal guardian or
have an abusive or negligent parent/legal guardian.
46. Mr. Shyam Divan, learned senior counsel for the first
respondent, has submitted that the said doctrine has been expanded by
the England and Wales Court of Appeal in a case DL v. A Local Authority
and others19. The case was in the context of “elder abuse” wherein a
G
man in his 50s behaved aggressively towards his parents, physically and
verbally, controlling access to visitors and seeking to coerce his father
into moving into a care home against his wishes. While it was assumed
that the elderly parents did have capacity within the meaning of the
18
[2014] NSWSC 53
H 19
[2012] 3 All ER 1064
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 987
[DIPAK MISRA, CJI]

Mental Capacity Act, 2005 in that neither was subject to “an impairment A
of, or a disturbance in the functioning of the mind or brain”, it was found
that the interference with the process of their decision making arose
from undue influence and duress inflicted by their son. The Court of
Appeal referred to the judgment in Re: SA (Vulnerable Adult with
Capacity: Marriage)20 to find that the parens patriae jurisdiction of
B
the High Court existed in relation to “vulnerable if ‘capacitous’ adults”.
The cited decision of the England and Wales High Court (Family Division)
affirmed the existence of a “great safety net” of the inherent jurisdiction
in relation to all vulnerable adults. The term “great safety net” was coined
by Lord Donaldson in the Court of Appeal judgment which was later
quoted with approval by the House of Lords inIn Re F (Mental Patient: C
Sterilisation21. In paragraph 79 ofRe:SA (Vulnerable Adult with
Capacity : Marriage), Justice Munby observes:-
“The inherent jurisdiction can be invoked wherever a vulnerable
adult is, or is reasonably believed to be, for some reason deprived
of the capacity to make the relevant decision, or disabled from D
making a free choice, or incapacitated or disabled from giving or
expressing a real and genuine consent. The cause may be, but is
not for this purpose limited to, mental disorder or mental illness.
A vulnerable adult who does not suffer from any kind of mental
incapacity may nonetheless be entitled to the protection of the
inherent jurisdiction if he is, or is reasonably believed to be, E
incapacitated from making the relevant decision by reason of
such things as constraint, coercion, undue influence or other
vitiating factors.”
47. In relation to Article 8 of the European Convention on
Human Rights (ECHR), Justice Munby observes in paragraph 66:- F

“In terms of the ECHR, the use of the inherent jurisdiction in this
context is compatible with Article 8 in just the same manner as
the MCA 2005 is compatible. Any interference with the right to
respect for an individual’s private or family life is justified to
protect his health and or to protect his right to enjoy his Article 8 G
rights as he may choose without the undue influence (or other
adverse intervention) of a third party. Any orders made by the
court in a particular case must be only those which are necessary
20
[2005] EWHC 2942 (FAM)
21
[1990] 2 AC 1 H
988 SUPREME COURT REPORTS [2018] 4 S.C.R.

A and proportionate to the facts of that case, again in like manner
to the approach under the MCA 2005.”
48. However, in paragraph 76, he qualifies the above principle
with the following comment:-
“It is, of course, of the essence of humanity that adults are entitled
B to be eccentric, entitled to be unorthodox, entitled to be obstinate,
entitled to be irrational. Many are.”
49. The judgment ofRe: SA (Vulnerable Adult with Capacity :
Marriage)(supra) authored by Justice Munby and cited in the above
Court of Appeal case was in the context of the exercise of parens
C patriae to protect an eighteen year old girl from the risk of an unsuitable
arranged marriage on the ground that although the girl did not lack
capacity, yet she was undoubtedly a “vulnerable adult”.
50. Interestingly, in another case, namely,A Local Authority v.
HB, MB, ML and BL (By their Children’s Guardian)22, the High
D Court’s inherent jurisdiction was invoked to protect children who were
allegedly going to be taken by their mother to Syria where they were at
a risk of radicalization. Although the High Court dismissed the applications
on facts for want of evidence, yet it made certain observations regarding
extremism and radicalization.
E 51. Mr. Divan has drawn our attention to the authority inA Local
Authority v. Y23 wherein the High Court (Family Division) invoked its
inherent jurisdiction to protect a young person, the defendant Y, from
radicalization.
52. Relying upon the aforesaid decisions, he emphasized on the
F concept that when the major is a vulnerable adult, the High Court under
Article 226 of the Constitution of India can exercise the parens patriae
doctrine which has been exercised in this case. The aforesaid judgments,
in our considered opinion, are not applicable to the facts of the present
case. We say so without any hesitation as we have interacted with the
respondent No. 9 and there is nothing to suggest that she suffers from
G
any kind of mental incapacity or vulnerability. She was absolutely
categorical in her submissions and unequivocal in the expression of her
choice.
22
[2017] EWHC 1437 (Fam)
23
H [2017] EWHC 968 (Fam)
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 989
[DIPAK MISRA, CJI]

53. It is obligatory to state here that expression of choice in accord A
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. The said
B
freedom is both a constitutional and a human right. Deprivation of that
freedom which is ingrained in choice on the plea of faith is impermissible.
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. Choosing a faith is the substratum of
individuality and sans it, the right of choice becomes a shadow. It has to C
be remembered that the realization of a right is more important than the
conferment of the right. Such actualization indeed ostracises any kind of
societal notoriety and keeps at bay the patriarchal supremacy. It is so
because the individualistic faith and expression of choice are fundamental
for the fructification of the right. Thus, we would like to call it
D
indispensable preliminary condition.
54. Non-acceptance of her choice would simply mean creating
discomfort to the constitutional right by a Constitutional Court which is
meant to be the protector of fundamental rights. Such a situation cannot
remotely be conceived. The duty of the Court is to uphold the right and not
to abridge the sphere of the right unless there is a valid authority of law. Sans E
lawful sanction, the centripodal value of liberty should allow an individual to
write his/her script. The individual signature is the insignia of the concept.
55. 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 F
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 between
the appellant and the respondent no.9 when both stood embedded to
their vow of matrimony. G
56. Resultantly, we allow the appeal and set aside the impugned
order. However, as stated in the order dated 08.03.2018, the investigation
by the NIA in respect of any matter of criminality may continue in
accordance with law. The investigation should not encroach upon their
marital status. H
990 SUPREME COURT REPORTS [2018] 4 S.C.R.

A DR. D. Y. CHANDRACHUD, J. 1. While re-affirming the
conclusions set out in the operative order, I agree with the erudite judgment
of the learned Chief Justice. I have added my own thoughts on the
judicial parchment to express my anguish with the grievous miscarriage
of justice which took place in the present case and to formulate principles
in the expectation that such an injustice shall not again be visited either
B
on Hadiya or any other citizen. 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
C 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.
2. Asokan, the father of Akhila alias Hadiya moved a habeas
D corpus petition before the High Court of Kerala. His apprehension was
that his daughter was likely to be transported out of the country. The
Kerala High Court was informed during the course of the hearing that
she had married Shafin Jahan. The High Court allowed the petition for
habeas corpus and directed that Hadiya shall be escorted from a hostel in
which she resided in Ernakulam to the house of her father holding that:
E
“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
F that Ms. Akhila is in safe hands.”
3. With these directions, the Division Bench of the Kerala High
Court declared that the marriage between Hadiya and Shafin Jahan is
null and void and ordered “a comprehensive investigation” by the police.
Hadiya continued to remain, against her will, in compulsive confinement
G at the home of her father in pursuance of the directions of the Kerala
High Court. On 27 November 2017, this Court interacted with Hadiya
and noted that she desires to pursue and complete her studies as a student
of Homeopathy at a college where she was a student, in Salem. Accepting
her request, this Court directed the authorities of the State to permit her
H to travel to Salem in order to enable her to pursue her studies.
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 991
[DR. D. Y. CHANDRACHUD, J.]

4. The appeal filed by Shafin Jahan has been heard finally. Hadiya A
is a party to these proceedings.
5. This Bench of three judges pronounced the operative part of its
order on 8 March 2018 and allowed the appeal by setting aside the
judgment of the High Court annulling the marriage between Shafin Jahan
and Hadiya. The Court has underscored that Hadiya is at liberty to pursue B
her endeavours in accordance with her desires.
6. Hadiya is a major. Twenty four years old, she is pursuing a
course of studies leading up to a degree in Homoeopathic medicine and
surgery at a college in Salem in Tamil Nadu. She was born to parents
from the Ezhava Community. In January 2016, Asokan instituted a habeas C
corpus petition, stating that Hadiya was missing. During the course of
the proceedings, Hadiya appeared before the Kerala High Court and
asserted that she had accepted Islam as a faith of choice. From 7 January
2016, she resided at the establishment of Sathyasarani Education
Charitable Trust at Malappuram. On 19 January 2016, the Kerala High
Court categorically observed that Hadiya was not under illegal D
confinement after interacting with her and permitted her to reside at the
Sathyasarani Trust premises. Nearly seven months later, Asokan filed
another petition in the nature of habeas corpus alleging that Hadiya had
been subjected to forced conversion and was likely to be transported out
of India. E
7. During the course of the proceedings, the High Court interacted
with Hadiya. She appeared in the proceedings represented by an
advocate. Hadiya, as the High Court records, declined to accompany
her parents and expressed a desire to continue to reside at Sathyasarani.
The High Court initially issued a direction that she should be F
“accommodated in a ladies’ hostel at the expense of her father”. On 27
September 2016, Hadiya made a serious grievance of being in the custody
of the court for thirty five days without being able to interact with anyone.
She stated that she had no passport and the allegation that she was likely
to go to Syria was incorrect. Based on her request, the High Court
directed her to reside at the Sathyasarani establishment. The High Court G
heard the case on 24 October 2016, 14 November 2016 and 19 December
2016. On 21 December 2016, the High Court was informed that Hadiya
had entered into a marriage on 19 December 2016. The High Court
recorded its “absolute dissatisfaction at the manner in which the marriage
if at all one has been performed has been conducted”. H
992 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Confronted with the undisputed fact that Hadiya is a major, the High
Court still observed:
“This Court exercising Parens Patriae jurisdiction has a duty to
ensure that young girls like the detenue are not exploited or
transported out of the country. Though the learned Senior Counsel
B has vociferously contended that the detenue is a person who has
attained majority, it is necessary to bear in mind the fact that the
detenue who is a female in her twenties is at a vulnerable age.
As per Indian tradition, the custody of an unmarried daughter is
with the parents, until she is properly married. We consider it the
duty of this Court to ensure that a person under such a vulnerable
C state is not exposed to further danger, especially in the
circumstances noticed above where even her marriage is stated
to have been performed with another person, in accordance with
Islamic religious rites. That too, with the connivance of the 7 th
respondent with whom she was permitted to reside, by this
D Court.”
Hadiya was under judicial order transported to a hostel at Ernakulam,
with a direction that:
“she is not provided the facility of possessing or using a mobile
phone.”
E
Save and except for her parents no one was allowed to meet her. An
investigation was ordered into the “education, family background,
antecedents and other relevant details” of Shafin Jahan together with
others involved in the ‘conduct’ of the marriage. The High Court continued
to monitor the case on 6 January 2017, 31 January 2017, 7 February
F 2017 and 22 February 2017. Eventually, by its judgment and order dated
24 May 2017, the High Court allowed the petition for habeas corpus and
issued the directions noted above.
8. The principal findings which have been recorded by the High
Court need to be visited and are summarised below:
G (i) 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;
(ii) Hadiya met Shafin Jahan on an online portal called “Way to
H Nikah”;
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 993
[DR. D. Y. CHANDRACHUD, J.]

(iii) During the course of the proceedings, Hadiya had stated before A
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”;
(iv) Though on 19 December 2016, the High Court adjourned the
hearing to 21 December 2016 to enable her to proceed to her B
college, the marriage took place on the same day;
(v) The marriage was “only a make-believe intended to take the
detenue out of reach of the hands of this court”;
(vi) The conduct of the parties in conducting the marriage without
informing the court was unacceptable; C
(vii) 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
(viii) No prudent parent would decide to get his daughter married to
a person accused in a criminal case.
D
The High Court concluded that the marriage “is only a sham and is of no
consequence”, a charade to force the hands of the court.
9. During the course of the present proceedings, this Court by its
order dated 30 October 2017 directed the First respondent to ensure the
presence of his daughter on 27 November 2017. On 27 November 2017, E
Hadiya stated before this Court, in the course of the hearing, that she
intends to pursue further studies towards the BHMS degree course at
Salem, where she was admitted. Directions were issued by the Court to
ensure that Hadiya can pursue her course of studies without obstruction.
We clarified that while she could stay in the hostel of the college as she
desired, she would be “treated like any other student”. F

10. Hadiya has filed an affidavit expressly affirming her conversion
to Islam and her marriage to Shafin Jahan.
11. There are two serious concerns which emerge from the
judgment of the Kerala High Court. The first is that the High Court G
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.
12. Undoubtedly, the powers of a constitutional court are wide, to
enable it to reach out to injustice. Mr Shyam Divan, learned senior counsel
H
994 SUPREME COURT REPORTS [2018] 4 S.C.R.

A appearing on behalf of First respondent emphasised the plenitude of the
inherent powers of the High Court. The width of the domain which is
entrusted to the High Court as a constitutional court cannot be disputed.
Halsbury’s Laws of England postulates:
“In the ordinary way the Supreme Court, as a superior court of
B record, exercise the full plenitude of judicial power in all matters
concerning the general administration of justice within its territorial
limits, and enjoys unrestricted and unlimited powers in all matters
of substantive law, both civil and criminal, except insofar as that
has been taken away in unequivocal terms by statutory enactment.
The term “inherent jurisdiction” is not used in contradistinction
C to the jurisdiction of the court exercisable at common law or
conferred on it by statute or rules of court, for the court may
exercise its inherent jurisdiction even in respect of matters which
are regulated by statute or rule of court. The jurisdiction of the
court which is comprised within the term “inherent” is that which
D enables it to fulfil itself, properly and effectively, as a court of law.”
Dealing with the ambit of the powers under Article 226, Gajendragadkar,
CJ in State of Orissa v Ram Chandra Dev and Mohan Prasad Singh
Deo1 observed thus:
“Under Article 226 of the Constitution, the jurisdiction of the
E High Court is undoubtedly very wide. Appropriate writs can be
issued by the High Court under the said Article even for purposes
other than the enforcement of the fundamental rights and in that
sense, a party who invokes the special jurisdiction of the High
Court under Article 226 is not confined to case of illegal invasion
F of this fundamental right alone. But though the jurisdiction of the
High Court under Article 226 is wide in that sense, the concluding
words of that Article clearly indicate that before a writ or an
appropriate order can be issued in favour of a party, it must be
established that the party has a right and the said right is illegally
invaded or threatened. The existence of a right is thus the
G foundation of a petition under Article 226.”
While dealing with the powers and privileges of the state legislatures, in
Keshav Singh2, a Bench of seven learned judges held thus:
1
AIR (1964) SC 685
2
H (1965) 1 SCR 413
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 995
[DR. D. Y. CHANDRACHUD, J.]

“136…in the case of a superior Court of Record, it is for the A
court to consider whether any matter falls within its jurisdiction
or not. Unlike a Court of limited jurisdiction, the superior Court is
entitled to determine for itself questions about its own jurisdiction.
“Prima facie”, says Halsbury, “no matter is deemed to be beyond
the jurisdiction of a superior court unless it is expressly shown to
B
be so, while nothing is within the jurisdiction of an inferior court
unless it is expressly shown on the face of the proceedings that
the particular matter is within the cognizance of the particular
court [Halsbury’s Law of England, Vol. 9, p. 349] “.
The High Court is vested with an extra-ordinary jurisdiction in order to
meet unprecedented situations (T K Rangarajan v Government of C
T.N.3). Several decisions have noted the inherent and plenary powers
of the High Court. Their purpose is to advance substantial justice. (i)
Roshan Deen v Preeti Lal4; (ii) Dwarka Nath v ITO, Special Circle
D-ward, Kanpur 5; (iii) Naresh Shridhar Nirajkar v State of
Maharashtra6; and (iv) M V Elisabeth v Harwan Investment and D
Trading (P) Ltd.7
13. These principles which emerge from the precedent are well-
settled. Equally the exercise of all powers by a constitutional court must
ensure justice under and in accordance with law.
14. The principles which underlie the exercise of the jurisdiction E
of a court in a habeas corpus petition have been reiterated in several
decisions of the Court. In Gian Devi v Superintendent, Nari Niketan,
Delhi8, a three-judge Bench observed that where an individual is over
eighteen years of age, no fetters could be placed on her choice on where
to reside or about the person with whom she could stay: F
“…Whatever may be the date of birth of the petitioner, the fact
remains that she is at present more than 18 years of age. As the
petitioner is sui juris no fetters can be placed upon her choice
of the person with whom she is to stay, nor can any restriction
be imposed regarding the place where she should stay. The court G
3
(2003) 6 SCC 581
4
(2002) 1 SCC 100
5
(1965) 3 SCR 536
6
(1966) 3 SCR 744
7
1993 Suppl. (2) SCC 433
8
(1976) 3 SCC 234 H
996 SUPREME COURT REPORTS [2018] 4 S.C.R.

A or the relatives of the petitioner can also not substitute their opinion
or preference for that of the petitioner in such a matter.”
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 as a major, she or he is not under illegal confinement, which
B the court finds to be a free expression of will, that would conclude the
exercise of the jurisdiction. In Girish v Radhamony K9 a two judge
Bench of this Court observed thus:
“3…In a habeas corpus petition, all that is required is to find out
and produce in court the person who is stated to be missing.
C Once the person appeared and she stated that she had gone of
her own free will, the High Court had no further jurisdiction to
pass the impugned order in exercise of its writ jurisdiction under
Article 226 of the Constitution.”
In Lata Singh v State of U P10, Bench of two judges took judicial notice
D of the harassment, threat and violence meted out to young women and
men who marry outside their caste or faith. The court observed that our
society is emerging through a crucial transformational period and the
court cannot remain silent upon such matters of grave concern. In the
view of the court:

E “17…This is a free and democratic country, and once a person
becomes a major he or she can marry whosoever he/she likes.
If the parents of the boy or girl do not approve of such inter-
caste or inter-religious marriage the maximum they can do is
that they can cut-off social relations with the son or the daughter,
but they cannot give threats or commit or instigate acts of violence
F and cannot harass the person who undergoes such inter-caste
or inter-religious marriage. We, therefore, direct that the
administration/police authorities throughout the country will see
to it that if any boy or girl who is a major undergoes inter-caste
or inter-religious marriage with a woman or man who is a major,
G the couple is not harassed by anyone nor subjected to threats or
acts of violence, and anyone who gives such threats or harasses
or commits acts of violence either himself or at his instigation, is
taken to task by instituting criminal proceedings by the police
9
(2009) 16 SCC 360
10
H (2006) 5 SCC 475
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 997
[DR. D. Y. CHANDRACHUD, J.]

against such persons and further stern action is taken against A
such persons as provided by law.”
Reiterating these principles in Bhagwan Dass v State (NCT OF
DELHI)11, this Court adverted to the social evil of honour killings as
being but a reflection of a feudal mindset which is a slur on the nation.
In a more recent decision of a three judge Bench in Soni Gerry v Gerry B
Douglas12, this Court dealt with a case where the daughter of the
appellant and respondent, who was a major had expressed a desire to
reside in Kuwait, where she was pursuing her education, with her father.
This Court observed thus:
“9…She has, without any hesitation, clearly stated that she intends C
to go back to Kuwait to pursue her career. In such a situation,
we are of the considered opinion that as a major, she is entitled
to exercise her choice and freedom and the Court cannot get
into the aspect whether she has been forced by the father or
not. There may be ample reasons on her behalf to go back to her D
father in Kuwait, but we are not concerned with her reasons.
What she has stated before the Court, that alone matters and
that is the heart of the reasoning for this Court, which keeps all
controversies at bay.
10. It needs no special emphasis to state that attaining the age of E
majority in an individual’s life has its own significance. She/He is
entitled to make her/his choice. The courts cannot, as long as
the choice remains, assume the role of parens patriae. The
daughter is entitled to enjoy her freedom as the law permits and
the court should not assume the role of a super guardian being
moved by any kind of sentiment of the mother or the egotism of F
the father. We say so without any reservation.”
These principles emerge from a succession of judicial decisions.
Fundamental to them is the judgment of a Constitution bench of this
Court in Kanu Sanyal v District Magistrate, Darjeeling13.
G
15. The High Court was seized of the grievance of Asokan that
his daughter was under illegal confinement and was likely to be
transported out of the country. In the course of the hearing of an earlier
11
(2011) 6 SCC 396
12
(2018) 2 SCC 197
13
(1973) 2 SCC 674 H
998 SUPREME COURT REPORTS [2018] 4 S.C.R.

A petition for habeas corpus, the High Court by its order dated 19 January
2016 expressly noticed that Hadiya was not willing to return to her
parental home. Taking note of the desire of Hadiya to reside at
Sathyasarani, the High Court observed that “the alleged detenue needs
to be given liberty to take her own decision with respect to her future
life.”
B
With the passing of that order the writ petition was withdrawn on 25
January 2016. Yet, again, when a second petition was filed, it was evident
before the High Court that Hadiya had no desire to stay with her parents.
She is a major. The Division Bench on this occasion paid scant regard to
the earlier outcome and to the decision of a coordinate Bench. The
C High Court inexplicably sought to deviate from the course adopted in the
earlier proceeding.
16. 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
D living for Hadiya. She has absolute autonomy over her person. Hadiya
appeared before the High Court and stated that she was not under illegal
confinement. There was no warrant for the High Court to proceed further
in the exercise of its jurisdiction under Article 226. The purpose of the
habeas corpus petition ended. It had to be closed as the earlier Bench
E had done. The High Court has entered into a domain which is alien to its
jurisdiction in a habeas corpus petition. The High Court did not take
kindly to the conduct of Hadiya, noting that when it had adjourned the
proceedings to issue directions to enable her to pursue her studies, it
was at that stage that she appeared with Shafin Jahan only to inform the
court of their marriage. How Hadiya chooses to lead her life is entirely
F 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.
17. The exercise of the jurisdiction to declare the marriage null
and void, while entertaining a petition for habeas corpus, is plainly in
G excess of judicial power. The High Court has transgressed the limits on
its jurisdiction in a habeas corpus petition. In the process, there has been
a serious transgression of constitutional rights. That is the second facet
to which we now turn.
18. Hadiya and Shafin Jahan are adults. Under Muslim law,
H marriage or Nikah is a contract. Muslim law recognises the right of
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 999
[DR. D. Y. CHANDRACHUD, J.]

adults to marry by their own free will. The conditions for a valid Muslim A
marriage are:
(i) Both the individuals must profess Islam;
(ii) Both should be of the age of puberty;
(iii) There has to be an offer and acceptance and two witnesses B
must be present;
(iv) Dower and Mehar; and
(v) Absence of a prohibited degree of relationship.
19. A marriage can be dissolved at the behest of parties to it, by a
C
competent court of law. Marital status is conferred through legislation
or, as the case may be, custom. Deprivation of marital status is a matter
of serious import and must be strictly in accordance with law. The High
Court in the exercise of its jurisdiction under Article 226 ought not to
have embarked on the course of annulling the marriage. The Constitution
recognises the liberty and autonomy which inheres in each individual. D
This includes the ability to take decisions on aspects which define one’s
personhood and identity. The choice of a partner whether within or outside
marriage lies within the exclusive domain of each individual. Intimacies
of marriage lie within a core zone of privacy, which is inviolable. The
absolute right of an individual to choose a life partner is not in the least
E
affected by matters of faith. The Constitution guarantees to each
individual the right freely to practise, profess and propagate religion.
Choices of faith and belief as indeed choices in matters of marriage lie
within an area where individual autonomy is supreme. The law prescribes
conditions for a valid marriage. It provides remedies when relationships
run aground. Neither the state nor the law can dictate a choice of partners F
or limit the free ability of every person to decide on these matters. They
form the essence of personal liberty under the Constitution. In deciding
whether Shafin Jahan is a fit person for Hadiya to marry, the High Court
has entered into prohibited terrain. Our choices are respected because
they are ours. Social approval for intimate personal decisions is not the
G
basis for recognising them. Indeed, the Constitution protects personal
liberty from disapproving audiences.
20. Article 16 of the Universal Declaration of Human Rights
underscores the fundamental importance of marriage as an incident of
human liberty:
H
1000 SUPREME COURT REPORTS [2018] 4 S.C.R.

A “Article 16. (1) Men and women of full age, without any
limitation due to race, nationality or religion, have the right to
marry and to found a family. They are entitled to equal rights as
to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full
B consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society
and is entitled to protection by society and the State.”
21. The right to marry a person of one’s choice is integral to
Article 21 of the Constitution. The Constitution guarantees the right to
C 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
D 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
E 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.
F 22. In Justice K S Puttaswamy v Union of India14, this Court
in a decision of nine judges held that the ability to make decisions on
matters close to one’s life is an inviolable aspect of the human personality:
“The autonomy of the individual is the ability to make decisions
on vital matters of concern to life… The intersection between
G one’s mental integrity and privacy entitles the individual to
freedom of thought, the freedom to believe in what is right, and
the freedom of self-determination… The family, marriage,
procreation and sexual orientation are all integral to the dignity
of the individual.”
14
H 2017 (10) SCC 1
SHAFIN JAHAN v. ASOKAN K.M. & ORS. 1001
[DR. D. Y. CHANDRACHUD, J.]

A Constitution Bench of this Court, in Common Cause (A Regd. A
Society) v Union of India15, held:
“Our autonomy as persons is founded on the ability to decide: on
what to wear and how to dress, on what to eat and on the food
that we share, on when to speak and what we speak, on the
right to believe or not to believe, on whom to love and whom to B
partner, and to freely decide on innumerable matters of
consequence and detail to our daily lives.”
The strength of the Constitution, therefore, lies in the guarantee which it
affords that each individual will have a protected entitlement in
determining a choice of partner to share intimacies within or outside C
marriage.
23. The High Court, in the present case, has treaded on an area
which must be out of bounds for a constitutional court. The views of the
High Court have encroached into a private space reserved for women
and men in which neither law nor the judges can intrude. The High D
Court was of the view that at twenty four, Hadiya “is weak and vulnerable,
capable of being exploited in many ways”. 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 E
Court as much as about the paternalism which underlies the approach to
constitutional interpretation reflected in the judgment in appeal. The
superior courts, when they exercise their jurisdiction parens patriae do
so in the case of persons who are incapable of asserting a free will such
as minors or persons of unsound mind. The exercise of that jurisdiction F
should not transgress into the area of determining the suitability of partners
to a marital tie. That decision rests exclusively with the individuals
themselves. Neither the state nor society can intrude into that domain.
The strength of our Constitution lies in its acceptance of the plurality and
diversity of our culture. Intimacies of marriage, including the choices
which individuals make on whether or not to marry and on whom to G
marry, lie outside the control of the state. Courts as upholders of
constitutional freedoms must safeguard these freedoms. The cohesion
and stability of our society depend on our syncretic culture. The
15
Writ Petition(Civil) No. 215 of 2005
H
1002 SUPREME COURT REPORTS [2018] 4 S.C.R.

A Constitution protects it. Courts are duty bound not to swerve from the
path of upholding our pluralism and diversity as a nation.
24. 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
B 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.
C 25. We have not been impressed with the submission of Mr. Shyam
Divan, learned senior counsel that it was necessary for the High Court
to nullify, what he describes as a fraud on the Court, as an incident of
dealing with conduct obstructing the administration of the justice. Whether
or not Hadiya chose to marry Shafin Jahan was irrelevant to the outcome
of the habeas corpus petition. Even if she were not to be married to him,
D all that she was required to clarify was whether she was in illegal
confinement. If she was not, and desired to pursue her own endeavours,
that was the end of the matter in a habeas corpus petition. The fact that
she decided to get married during the pendency of the proceedings had
no bearing on the outcome of the habeas corpus petition. Constitutionally
E it could have no bearing on the outcome.
26. During the course of the proceedings, this Court by its interim
order had allowed the National Investigation Agency to assist the Court.
Subsequently, NIA was permitted to carry out an investigation. We clarify
that NIA may exercise its authority in accordance with the law within
F the bounds of the authority conferred upon it by statute. 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.
G
27. The appeal stands allowed in terms of our order dated 8 March
2018. The judgment of the High Court is set aside.

Devika Gujral Appeal allowed.

H