Asokan K.M v.

The Superintendent of Police

WP(Crl.). No. 297 of 2016 (S)

Introduction

Originally named Akhila Ashokan, Hadiya Jahan became an Islamic throughout her
Coimbatore medical education. At the age of 25, she married Shafin Jahan, a Muslim,
after meeting him. Mr. K.M. Ashokan, Akhila's father, filed a Writ Petition in the
Kerala High Court after learning of the marriage. He said Hadiya had been tricked
and coerced into accepting Islam. Additionally, he claimed that Akhila's husband was
connected to radical Muslim groups. Throughout the High Court hearings, Hadiya
insisted that she freely chose to become an Islamist and marry Shafin Jahan. On May
24, 2017, however, the marriage was dissolved and labelled a "sham" by High Court
Justices Surendra Mohan Kuriakose and Abraham Mathew. According to their ruling,
Hadiya's marriage is the most significant decision she will ever make, and she can
only make it with her parents' active participation. The Justices disregarded the fact
that Hadiya, a legal adult, did not agree to parental custody and instead gave Mr.
Ashokan custody of Hadiya.
 Judgement

Asokan K.M v. The Superintendent of Police

WP(Crl.). No. 297 of 2024 (S)

PETITIONER(S)….. ASOKAN K.M

v.
RESPONDENT(S)….. ….. THE SUPERINTENDENT
OF POLICE

K.Surendra Mohan J., K. Surendra Mohan J., ANONYMOUS, J. (separate dissenting

judgment)

Fact of the Case

a. The father of a girl named Ms. Akhila has filed a writ petition seeking the
issuance of a writ of habeas corpus. The petitioner, Sri. Ashakan, and Smt.
Ponnamma are the lone parents of Ms. Akhila, a 24-year-old single woman.
Both of them are Hindu (Ezhava) in origin. For this reason, Ms. Akhila was
raised according to Hindu rites and beliefs. The petitioner claims that she is
close friends with Ms. Jaseena and Ms. Faseena, who are both Sri
Aboobacker's sisters and daughters. The petitioner claimed that three of them
had deceived, misinformed, and coerced Ms. Akhila into accepting Islam
while she was in detention.
b. In her declaration, she claimed that two of her friends, Ms. Jaseena and Ms.
Faseena, impressed her with their prompt prayers and good character while
she and her friends were lodging in a leased home in Salem. Wanting to know
more about Islam, she began watching videos on the internet and reading
books written by Muslims.
c. Without openly declaring her new faith, she began to practice Islam. She
would pray at home and in her room at the same time. One day, however, her
father caught her praying and forewarned her against Islam, claiming that it
 was a terrorist faith. Subsequently, Aboobacker brought her to the Tharbiathul
Islam Sabha, where she was admitted as an external candidate. They insisted
on bringing the parents of the putative detainee in order for them to be
admitted as an internal candidate. Ms. Akhila signed an affidavit attesting that
she was accepting Islam voluntarily and without coercion in order to qualify as
an external candidate. She had informed her father and the Director General of
Police of the true situation in two separate letters that she had registered. She
said that she had the right to follow a faith that appealed to her and to select
the religion of her choice because she had reached the majority. She claims
that because of her father's complaint, she was harassed by the police.

d. In her declaration, she claimed that two of her friends, Ms. Jaseena and Ms.
Faseena, impressed her with their prompt prayers and good character while
she and her friends were lodging in a leased home in Salem. Wanting to know
more about Islam, she began watching videos on the internet and reading
books written by Muslims. But Ms. Akhila showed up in court with an
unfamiliar companion and she had married the young man who was with her
in accordance with Muslim religious traditions that was performed by the
Khazi of Puthoor Juma Masjid. Additionally, photostat copies of the receipts
that the Othukkungal Grama Panchayat produced on December 20, 2016,
attesting to the payment of funds for the registration of a marriage between
Shafin Jahan and Hadiya, were given to us by the learned Senior Counsel.
Shefin Jahan, however, is the name that appears on the marriage certificate.

e. Whereas, in this instance, the detainee has been forced or misled into attending
a marriage ceremony in compliance with Islamic religious procedures,
according to the learned Government Pleader. Even if the educated Senior
Counsel has fiercely argued that the detenu is an adult, it is important to
remember that the detenu, a twenty something woman, is still a vulnerable
age. In Indian custom, a single daughter's parents have guardianship of her
until she enters into a lawful marriage. She had stated that she wanted to marry
a Muslim. As a result, she had enrolled under the name "way to Nikah" on the
 matrimonial website. It was argued that a woman who has reached adulthood
has the right to marry someone who practices a different faith even though that
person is her spouse. In light of the aforementioned rules, it is argued that Ms.
Akhila might also be allowed to live her life as she pleases and travel with her
spouse. She also said that she was living her life in accordance with Islamic
beliefs free from outside pressure in her certified affidavit.

Issues Raised:

1. Whether the petitioner has right to chose her religions of her choice?

2. Whether the petitioner has right to marry to partner of her choice out of her
religion?

Relevant Laws
2. It is stated to be false on social radicalization and a few other areas, in my opinion. It
is her right of choice of an adult in choosing a man to whom she gets married.

3. Referring the judgement of The United States is where the Parens Patriae doctrine
first emerged. Kingdom throughout the thirteenth century. It suggests that the King,
in his capacity as the responsibility of the nation's guardian is to ensure the interest of
individuals who are incapable of taking care of themselves.

In the case of Thomasset v. Thomasset, L.J. noted that in the use of the Parens Patriae
authority, "fathers' rights" and guardians by law were always honoured, although
under strict extent not recognised by common law by taking actual welfare into
account. In feudal times, the King's obligation to serve as Parens Patriae had been
seized by the State in the modern era.

4. It is necessary to mention here that expressing of preference in Respect for the law
signifies acceptance of personal identity. Reduction in size of that statement and the
ensuing action that follows Regarding the conceptual structuralism of submitting to
the will of society demolish a person's individualistic essence. The norms of society
and morality have a place, but they are not superior to what freedom provided by the
constitution. The aforementioned freedom is a both human and constitutional right.
Taken away from that liberty which is embedded in decision-making on the basis of
faith is unacceptable. A person's faith is fundamental to their meaningful existence. To
possess the freedom of faith is necessary for their independence, and it fortifies the
fundamental principles of the Constitution. Choosing a faith is the substratum of
individuality and sans it, the right of choice becomes a shadow.

5. It is imperative to bear in mind that the actualization of an entitlement holds greater

significance than its grant. In fact, this style of actualization repels patriarchal
supremacy and shuns all forms of social recognition. This is the case since the
realisation of the right depends on the individualistic belief and the manifestation of
choice.
6. The Court's responsibility is to protect the right and refrain from restricting it unless
there is a legitimate legal authority. The centripodal value of liberty ought to permit
each person to craft their own story. An individual's signature serves as the concept's
emblem.

7. In the present case, the father may believe that there has been a significant violation of
his right to defend his daughter's interests, but his viewpoint or stance cannot be
permitted to restrict his daughter's fundamental rights since she chose to go ahead and
marry the appellant. Thus, by assuming the responsibility of nullifying the marriage
between the respondent and the appellant, my learned brother judge has made a grave
mistake.

8. Regardless of the petitioner's birthdate, it is undeniable that she is currently older than
eighteen. Because the petitioner is entitled to stay in any place of her choosing, there
can be no limitations on her choice of who she stays with or where she stays. (Girish v
Radhamony case referred)

9. A two-judge bench in Lata Singh v. State of U P, took cognizance of the violence,

threats, and harassment directed at young men and women who marry outside their
caste or religion.

Referring Salamat Ansari & 3 Others v. State of U.P. & 3 Others;

"Right to live with a person of his/her choice irrespective of
religion professed by them is intrinsic to right to life and personal
liberty. Interference in a personal relationship, would constitute a
serious encroachment into the right to freedom of choice of the two
individuals."

10. A person can marry anybody they choose after they become a major in this free and
democratic nation. The boy or girl's parents can only sever social ties with their
offspring if they disapprove of the intercaste or interreligious marriage; they are not
allowed to threaten, carry out, or encourage acts of violence against, the individual
 entering into such a marriage, nor can they harass them. (Bhagwan Dass v State (NCT
OF DELHI))

11. In my opinion, it is not particularly important to emphasise that reaching the age of
majority in one's life has significance of its own. She/he is free to choose what they
want. The daughter has the legal right to enjoy her freedom, and the court shouldn't
act as a super guardian, swayed by the father's egotism or any sentiment of the
mother.

12. Hadiya "needs to be given liberty to take her own decision with respect to her future
life," acknowledging her wish to live in Sathyasarani. Hadiya was not interested in
remaining with her parents. She is a major. Hadiya has complete control over the
course she takes in life. not affecting the validity of her union or her freedom to
choose who she wants to marry or live with.
13. French philosopher and thinker Simone Weil has said: “Liberty, taking the word in its
concrete sense consists in the ability to choose.” In Shakti Vahini v. Union of India
also, the Apex Court adhered to this position. It held that consensually choosing life
partners is a manifestation of their freedom of choice guaranteed under Articles 19
and 21 of the Constitution. The right to marry the person of one’s choice is a
fundamental component of Article 21. This right cannot be curtailed except through a
law that is just and reasonable.
14. Shafin Jahan and Hadiya are both adults. Muslim law views Nikah, or marriage, as a
contract. Adults have the freedom to choose to marry according to Islamic law.
Choosing a companion, whether in or out of marriage, is solely a personal decision for
each person. Marital intimacy exists within an untouchable core private zone. Every
person's freedom to practise, profess, and spread their religion is guaranteed by the
Constitution. Faith and belief decisions, as well as marriage-related decisions, fall
under the category of personal freedom. The freedom of each individual to choose
their spouse or restrict their options is something that neither the state nor the law can
impose. They are the foundation of individual liberty as defined by the Constitution.
15. A fundamental component of Article 21 of the Constitution is the freedom to marry
the person of one's choosing. The right to life is protected by the Constitution. This
freedom cannot be restricted until a law that is fair, reasonable, and just in both
substance and procedure is passed. Cases of Laxmibai Chandaragi B. v. State of
Karnataka hold that the right to marry a person of one’s choice is
integral to Article 21.

16. Our Constitution's strength is found in its appreciation of our culture's diversity and
plurality. The decisions people make about who to marry and whether to marry are
personal matters that are not subject to governmental regulation.

17. Hence this petition is allowed.