TaxTMI 
TaxTMI 
2018 (4) TMI 1887
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....vedi, Bhawna Singh Dev and B.N. Dubey, 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....
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....om Shivaraj Homeopathic Medical College, Salem in Tamil Nadu. While pursuing the said course, she was initially residing in the college hostel and later she started staying in a rented house near her college together with five other students among whom were Jaseena and Faseena, daughters of one Aboobacker. During the college holidays, Hadiya used to visit the house of Aboobacker and there was also an occasion when both Jaseena and Faseena came to reside with Hadiya at the house of Asokan, 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 d....
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.... 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 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 deten....
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.... statement of Ms. Akhila that she proposes to reside with the seventh Respondent, Smt. A.S. Sainaba, whose 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 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 Respond....
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....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. 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 ....
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....e 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. 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 sus....
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....ure 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. 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 H....
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....ies, 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 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 an....
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.... 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 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, ....
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....od & Company, Publishers, Chicago, Illinois, 1923) where the authors have dealt with the aspect of Habeas Corpus. It reads as under: 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 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 piv....
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....er choice, directed that she was free to go where 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 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 ....
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....sovereign and imposes a duty on sovereign, in public interest, to protect persons under disability who have no rightful protector. The connotation of the 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 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 ....
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....pined: 130. In our opinion, in the case of an incompetent person who is 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 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. 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 take....
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....; it includes infants as well as those of unsound mind. 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". 44. Recently, the Supreme Court of New South Wales, in the case of AC v. OC (a minor) [2014] NSWSC 53, 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, 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....
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.... 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, 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: 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 fac....
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....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 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 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 situat....
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....y. 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: A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways. This Court exercising parens patriae jurisdiction is concerned with the welfare of a girl of her age. The duty cast on this Court to ensure the safety of at least the girls who are brought before it can be discharged only by ensuring that 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 st....
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....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". 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 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 to....
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....t 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, 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". 66. Hadiya has filed an affidavit expressly affirming her conversion to Islam 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....
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....e 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 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 T.N. (2003) 6 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....
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....hey 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 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, 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 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....
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....on of a coordinate Bench. The High Court inexplicably sought to deviate from the course adopted in the earlier proceeding. 72. 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 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 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 a matter of her choice. The High Court's view of her lack of c....
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....ee 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 basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences. 76. Article 16 of the Universal Declaration of Human Rights underscores the fundamental importance of marriage as an incident of human liberty: 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 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....
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...., 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 marriage. 79. 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, 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 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....