TaxTMI 
TaxTMI 
2018 (4) TMI 1887
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...., Advs. JUDGMENT Dipak Misra, C.J.I. and A.M. Khanwilkar, J. 1. 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 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 recognize the other's identity. That is reflection of cruelty which the law does not countenance. The expose 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 her own choice in adhering to a faith and further making Everestine effort to garrotte her desire to live with the man with whom ....
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....d course, she was initially residing in the college hostel and later she started staying in a rented house near her college together with five other students among whom were Jaseena and Faseena, daughters of one Aboobacker. During the college holidays, Hadiya used to visit the house of Aboobacker and there was also an occasion when both Jaseena and Faseena came to reside with Hadiya at the house of Asokan, Respondent No. 1 herein. On 6th December, 2015, Hadiya's paternal grandfather breathed his last. Hadiya on that day came back to her house and it is alleged that at that time, the family members and relatives of Asokan noticed some changes in her behaviour as she was showing reluctance to participate in the rituals performed in connection with the funeral of her grandfather. Thereafter, she went to Salem for her internship along with Jaseena and Faseena. Till 5th January, 2016, she was in constant touch with her family. Thereafter, on the next day, i.e., 6th January, 2016, Asokan received a telephone call from one of the friends of Hadiya informing that Hadiya had gone to the college on that day wearing a 'Pardah'. The Respondent No. 1 was further informed that Hadiya....
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....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 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 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. 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 h....
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....ss 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 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 open to the parents of Ms. Akhila to meet and interact with her. 12. On the basis of the aforesaid order passed by the High Court, 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 ....
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....e is also, according to the learned Senior Counsel, willing to accompany her. 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 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. 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 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....
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....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 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 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 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....
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.... her parents. 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. 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. 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: iii) The 4th Respondent shall take over the investigation of Crime No. 21 of 2016 of Perinthalmanna Police Station and shall have a ....
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....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 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 practice to enable her to continue her internship/housemanship 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 concerned. Needless to say, when she stays in the hostel, she will be treated like any other student and will be guid....
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.... each 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'Brien [1923] AC 603: [1923] ALL E.R. Rep. 442 (HL), it has 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 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) AIR 1959 SC 843, after referring to Greene v. Secy. of States for Home Affairs [1942] AC 284: [1941] 3 All ER 388 (HL), this Court 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 ....
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....e Regulations provided for its 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 Ors. (2011) 10 SCC 781) 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 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 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 i....
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.... enforcing agency to 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. 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 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 negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who....
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....disability. Conceptually, the parens patriae theory is the obligation of the State to protect and takes into custody the rights 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 rights of the citizens. ... 35. In Anuj Garg and Ors. v. Hotel Association of India and Ors. (2008) 3 SCC 1, 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 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. 30. Parens patriae power has only been able to gain definit....
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....rs 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. 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 taken care of till she becomes a major. 40. In Heller v. Doe 509 US 312 (1993), Justice Kennedy, speaking for the U.S. Supreme Court, observed: The State has a legitimate interest under its Parens Patriae powers in providing care to its citizens who are unable to care for themselves. 41. The Supreme Court of Canada in E. (Mrs.) v. Eve [1986] 2 SCR 388 observed thus with regard to the doctrine of Parens Patriae: ....
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....as 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, 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]. 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 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 of the court that the said parties ha....
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....factors. 47. In relation to Article 8 of the European Convention on Human Rights (ECHR), Justice Munby observes in paragraph 66: 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 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 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 to be eccentric, entitled to be unorthodox, entitled to be obstinate, entitled to be irrational. Many are. 49. The judgment of Re: SA (Vulnerable Adult with Capacity: Marriage) (supra) authored by Justice Munby and cited in the above Court of Appeal case was in t....
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....individuality and sans it, the right of choice becomes a shadow. It has to 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 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 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 posit....
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.... at least the girls who are brought before it can be discharged only by ensuring that Ms. Akhila is in safe hands. 59. 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 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 to travel to Salem in order to enable her to pursue her studies. 60. The appeal filed by Shafin Jahan has been heard finally. Hadiya is a party to these proceedings. 61. 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 pursu....
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....e learned Senior Counsel 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 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 7th Respondent with whom she was permitted to reside, by this 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. 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 ....
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....slam and her marriage to Shafin Jahan. 67. There are two serious concerns which emerge from the judgment of the Kerala High Court. The first is that the High Court transgressed the limits of its jurisdiction in issuing a declaration annulling the marriage of Shafin Jahan and Hadiya in the course of the hearing of a habeas corpus petition. 68. Undoubtedly, the powers of a constitutional court are wide, to enable it to reach out to injustice. Mr. Shyam Divan, learned senior Counsel 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 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....
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....SCC 581). 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 Lal (2002) 1 SCC 100; (ii) Dwarka Nath v. ITO, Special Circle D-ward, Kanpur (1965) 3 SCR 536; (iii) Naresh Shridhar Nirajkar v. State of Maharashtra (1966) 3 SCR 744; and (iv) M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd. 1993 Suppl. (2) SCC 433 69. 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. 70. The principles which underlie the exercise of the jurisdiction of a court in a habeas corpus petition have been reiterated in several decisions of the Court. In Gian Devi v. Superintendent, Nari Niketan, Delhi (1976) 3 SCC 234, 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: ...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 f....
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....iminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law. Reiterating these principles in Bhagwan Dass v. State (NCT OF DELHI) (2011) 6 SCC 396, 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 Douglas (2018) 2 SCC 197, 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 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 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 h....
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....rt 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 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. 73. The exercise of the jurisdiction to declare the marriage null and void, while 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. That is the second facet to which we now turn. 74. Hadiya and Shafin Jahan are adults. Under Muslim law, marriage or Nikah is a contract. Muslim law recognises the right of adults to marry by their own free will. The conditions for a valid....
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....ey 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 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. 77. The right to marry a person of one's choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. The law may ....
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.... this matter is as much about the miscarriage of 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 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. 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. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture. The Constitution protects it. Courts are duty bound not to swerve from the path of upholding our pluralism and diversi....