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Kerala ‘love jihad’: Hadiya has absolute autonomy, says SC


New Delhi: The Supreme Court has set aside the Kerala High Court verdict and restored the inter-faith marriage of Hadiya and Shafin Jahan, saying the former had “absolute autonomy over her person.” Observing that the faith of a person was intrinsic to a person’s meaningful existence, the top court said that choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow.
A bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud, which gave two separate but concurring verdicts, said the “expression of choice in accord with law is acceptance of individual identity”.
“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,” the bench said in its detailed verdict which was uploaded on the apex court’s website on Monday.
The Supreme Court had on March 8 set aside the high court verdict which had held as null and void the marriage between Jahan and Hadiya, who had appeared before the court and had categorically stated that she had converted to Islam and married him on her own free will.
Referring to the Hadiya’s father contentions, the top court said he may feel there was “enormous transgression” of his right to protect the interest of his daughter but his viewpoint cannot be allowed to curtail her fundamental rights.
“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 (Hadiya) when both stood embedded to their vow of matrimony,” it said, adding that the freedom was both a constitutional and a human right.
“Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible,” it said.
The top court said the realisation of a right is more important than the conferment of the right and such actualisation indeed ostracised any kind of societal notoriety and kept 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,” the chief justice, who penned the verdict for himself and Justice Khanwilkar, said.
The bench said that non- acceptance of Hadiya’s 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,” it said.