No role of state, society in individual’s choice: SC
NEWDELHI: An individual’s right to marry a person of his or her choice is a matter of privacy, intrinsic to right to life and state and society have no role to play in determining the choice, the Supreme Court said in a detailed order on the controversial Hadiya case that was uploaded on Monday, almost a month after the apex court, though a brief order, set aside the Kerala high court’s May 2017 ruling that annulled her marital union, holding it as sham.
The detailed order is a severe criticism of the HC order that annulled the marriage of 26-yearold Kerala woman, Haidya, who converted to Islam to marry a Muslim man Shafin Jahan. It is also not kind to Hadiya’s father or the Kerala government.
A bench of Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud held that the high court order violated the freedom of an adult woman. The Kerala government, too, drew flak for supporting the woman’s father who, according to the judges, was “obstinate” and made all efforts to “garrote” his daughter’s desire to live with a man of her choice. “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,” the bench said in its order. Hadiya, born Akhila, converted to Islam in January 2016 and married Shafin Jahan in December the same year. In May 2017, the Kerala high court annulled the marriage. The HC not only invalidated Hadiya’s marriage but also handed her custody to her parents. The order came on a habeas corpus petition filed by Hadiya’s father who had moved the court asking for his daughter’s custody, alleging that she was being taken to Syria and that her husband Jahan was a recruiter for a terror outfit, the Islamic State.
The high court’s annulment order put the spotlight on “love jihad”, a controversial term coined by fringe Hindu groups to describe inter-religious marriages as “a conspiracy by Muslim men to lure Hindu women”.
CJI Misra, writing for himself and Justice Khanwilkar called the HC judgement a “sanctuary of errors” and said the court was “erroneously guided by some kind of social phenomenon that was frescoed before it.”