Freedom of choice is an idea that is absolutely central to majority better life which is not a new one. The significance of the quality of life of the people of society in considering the accomplishment to free religious rules, it is quite easy to perceive the consequence of freedom of choice to religious appraisal and valuation.

Freedom of choice and religion is a modern idea and a formal concept. Freedoms to protect the right of the people and aid them to take choices pretense serious problems applied to persons of lessened ability. There is hierarchy of means where we can characteristic freedoms to such people. Laissez-faire is basically an idea where the law should not intervene in the affairs of individuals.

Freedom provides protection to choose that make their importance debatable. Freedom may have different values for different individuals, whereas the values of other kinds of rights seem to remain constant for all applicants. Freedom of speech protects both the choice to speak and choice to be silent.1The state can forbid open exercise of religion rather than commanding piety.2

Right to Freedom of choice which have alternative decisions and situations, generally, without considering the precise preferences of the decision makers.

The power of making decisions to get rid of preference difficulties to link freedom of choice with power and from this we will arrive at responsibilities. The guarantee of freedom values as a way of self expressions, self realizations and self accomplishment. The constitution guarantees the free exercise of religion. Strictly balanced choice is not the legacy of religious faith.

This case essentially discussed the weight of personal laws and how they can in no case overrule the fundamental rights of an individual. Article 21 of the Constitution of India guarantees the right to life and personal liberty to each citizen of the country, which includes the right to privacy as well as the right to choice to marry. Hadiya, in this case, is a 24 old woman, capable of making her own decisions about her religious faith as well as her choice to marry an individual.

Facts
Respondent No. 9, Hadiya (born Akhila Asokan), had acquired a degree in homoeopathic medicine and was doing her internship at a college in Salem. Her father, K.M. Asokan (Respondent No. 1), was informed that Akhila had attended college wearing a 'pardah' and had decided to convert to Islam.

He became unwell as a result. Hadiya left Salem with a friend but did not return to her father's house; when the father inquired about Hadiya at her friend's house, he was informed that Hadiya had escaped. The father reported his missing daughter to the police.

After a few days, the father filed a writ petition for habeas corpus before the Division Bench of the Kerala High Court, claiming that the police had made no progress in their investigation. Hadiya arrived in court and filed an impleadment application, after which she was impleaded as a Respondent. She later filed an affidavit detailing the events and circumstances surrounding her departure from her father's residence, as well as indicating that she informed her father and the police.

In addition, Hadiya petitioned the Kerala High Court for protection against police harassment. The High Court dismissed the case after concluding that Hadiya had enrolled in a dormitory to advance her education and was not being held illegally. Hadiya then withdrew her writ petition.

Hadiya's father filed a second writ case, stating that his daughter had been subjected to forced conversion and would be deported. The High Court issued an interim injunction instructing Hadiya to be monitored to ensure she does not flee the country. Hadiya informed the Court that she did not have a passport and that she would not be deported to Syria. During the hearing, Hadiya informed the High Court that she had married Shafin Jahan, i.e the Appellant.

Dissatisfied with the way the marriage was conducted, the Kerala High Court exercised its parens patriae jurisdiction and annulled their marriage, noting that "a girl aged 24 years is weak and vulnerable and capable of being exploited in many ways," and it was the Court's responsibility to ensure her safety. The High Court also ordered continued surveillance to protect her safety. An examination of the Appellant's education, family background, antecedents, and other relevant data, as well as those involved in the marriage's conduct, was ordered. The appellant filed an appeal with the Supreme Court after being dissatisfied with the High Court's decision.

Issues Raised
The following issues were contended before the Hon'ble Supreme Court:

• Whether the High Court was justified in allowing the writ of habeas corpus and annulling the marriage between the Appellant and Respondent No. 9?
• Whether the High Court had the jurisdiction to annul the marriage of a legal adult who had consented to said marriage as well as the conversion in religious faith?

Laws/Provisions Mentioned

• Article 226 of the Constitution of India:
  Power of High Courts to issue certain writs:
  Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto, and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.[1]
   
• Article 32 of the Constitution of India:
  Remedies for enforcement of rights conferred by this Part:
  
  1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
  2. The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.[2]
  
   
• Article 19 of the Constitution of India:
  Protection of certain rights regarding freedom of speech, etc:
  
  1. All citizens shall have the right
     
     1. to freedom of speech and expression;
     2. to assemble peaceably and without arms;
     3. to form associations or unions;
     4. to move freely throughout the territory of India;
     5. to reside and settle in any part of the territory of India; and
     6. (omitted)
     7. to practice any profession, or to carry on any occupation, trade or business[3]
         
• Article 21 of the Constitution of India:
  Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.[4]
   
• Valid Requisites of a Muslim Marriage:
  The conditions for a valid Muslim marriage are:
  
  1. Both the individuals must profess Islam;
  2. Both should be of the age of puberty;
  3. There has to be an offer and acceptance and two witnesses must be present;
  4. Dower and Mehar; and
  5. Absence of a prohibited degree of relationship.[5]

Analysis
The Supreme Court ordered Respondent No. 1 to produce his daughter, Hadiya (Respondent No. 9) before the Court. After interacting with Hadiya, the Court noted her will and directed that she be admitted to the Medical College in Salem where she intended to pursue her internship, and the Government of Kerala to make all necessary arrangements for her to travel to Salem.

The Court traced the legal history of the writ of habeas corpus and interpreted its meaning and scope. In doing so, it referred to Indian as well as English and American cases such as:

1. Cox vs. Hakes ((1890)[6],
2. Secretary of State for Home Affairs vs. O'Brien (1923)[7],
3. Kanu Sanyal vs. District Magistrate, Darjeeling and Ors. (1973)[8],
4. Ware vs. Sanders (1910)[9], and
5. Ummu Sabeena vs. State of Kerala and Ors. (2011)[10].

The Court observed that:
"The pivotal purpose of the said writ is to see that no one is deprived of his/her liberty without the 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 is produced before it, find out about his/her independent choice, and see to it that the person is released from illegal restraint."

Moreover, the "ambit of a habeas corpus petition is to trace an individual who is stated to be missing. Once the individual appears before the court and asserts that as a major, she or he is not under illegal confinement, which the court finds to be a free expression of will, that would conclude the exercise of the jurisdiction."

The Court further noted that the "expression of choice is a fundamental right under Articles 19 and 21". The Court pointed out that "Hadiya (had) appeared before the High Court and stated that she was not under illegal confinement" and in view of this, the High Court had no warrant to proceed further in the exercise of its jurisdiction under Article 226 but had been incorrectly swayed by Respondent No. 1's averments.

It observed that the Court could not be influenced by parental concerns and did not have the jurisdiction to decide what would "be a 'just' way of life or 'correct' course of living for Hadiya. She has absolute autonomy over her person." Moreover, the High Court was wrong in making observations relating to social radicalization and welfare concerns in a writ of habeas corpus, and any apprehensions related to future criminal activity and otherwise were not under the writ jurisdiction and were to be governed and controlled by the State in accordance with the law.

Further, the Court invalidated the order of the High Court invoking the Parens Patriae Doctrine. It traced the origin of the doctrine in British Common law and referred to precedents in India, the U.K, the U.S, Canada, and Australia to note its usage and purpose.

It referred to:

1. Thomasset vs. Thomasset ((1894) P 295),
2. Charan Lal Sahu vs. Union of India (1990)[11],
3. Anuj Garg and Ors. vs. Hotel Association of India and Ors. (2008)[12],
4. Aruna Ramachandra Shanbaug vs. Union of India (2011)[13],
5. Heller vs. Doe (1993)[14], E. (Mrs.) vs. Eve (1986)[15],
6. Secretary, Department of Health and Community Service vs. J.W.B. and
7. S.M.B. (1992)[16], and AC vs. OC (a minor) ((2014)[17].

The Court noted that "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 have either no parent/legal guardian or have an abusive or negligent parent/legal guardian."

Referring to the interaction with Hadiya, the Court opined that the parens patriae jurisdiction was "not applicable to the facts of the present case, as "there is nothing to suggest that she suffers from any kind of mental incapacity or vulnerability". Moreover, "(s)he was absolutely categorical in her submissions and unequivocal in the expression of her choice".

The Court noted that "each individual will have a protected entitlement in determining a choice of partner to share intimacies within or outside marriage". It cited Justice K.S. Puttaswamy vs. Union of India and Ors. (2017)[18], which held that autonomy was an individual's ability to make decisions on important matters of their life and that the intersection between one's mental integrity and privacy entitles the person to the freedom of thought and self-determination regarding marriage, procreation, and sexual orientation, and were integral to a person's dignity.

The Court held that 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."

The Court elucidated this aspect further and noted that liberty and autonomy recognized by the Constitution included the ability to make decisions on "aspects which define one's personhood and identity" and the "choice of a partner whether within or outside marriage lies within the exclusive domain of each individual (as) Intimacies of marriage lie within a core zone of privacy, which is inviolable". The Court also noted that the "Constitution guarantees to each individual the right freely to practice, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme".

The Court held that the High Court had erred in deciding whether Shafin Jahan was a fit person for Hadiya to marry, as "the right to marry a person of one's choice is integral to Article 21 of the Constitution" and "society has no role to play in determining our choice of partners".

The Court was of the opinion that "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. Hadiya and Shafin Jahan are adults. Under Muslim law, marriage or nikah is a contract. Muslim law recognizes the right of adults to marry of their own free will. The conditions for a valid Muslim marriage are:

1. Both the individuals must profess Islam;
2. Both should be of the age of puberty;
3. There has to be an offer and acceptance and two witnesses must be present;
4. Dower and Mehar; and
5. Absence of a prohibited degree of relationship.

(Paras 82 and 83)
A marriage can be dissolved at the behest of parties to it, by a competent court of law. Marital status is conferred through legislation or, as the case may be, custom. The law prescribes conditions for a valid marriage. It provides remedies when relationships run aground. Deprivation of marital status is a matter of serious import and must be strictly in accordance with the law. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled.

These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining our choice of partners. Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognizing them. Indeed the Constitution protects personal liberty from disapproving audiences.

A Constitution Bench of this Court, in Common Cause (A Regd. Society) v Union of India (2005)[19], held: "Our autonomy as persons is founded on the ability to decide: on what to wear and how to dress, on what to eat and on the food that we share, on when to speak and what we speak, on the right to believe or not to believe, on whom to love and whom to partner, and to freely decide on innumerable matters of consequence and detail to our daily lives."

The strength of the Constitution, therefore, 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.

Further on matters of belief and faith, the Court noted that "whether to believe (or not) 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". The Court thus quashed the impugned judgment of the High Court and upheld Hadiya's right to autonomy and self-determination regarding her marriage and faith.

Conclusion
Shafin Jahan v. K.M. Ashokan was cited as an example of "patriarchal autocracy and potentially self-obsession with the sense that a girl is a chattel." The Kerala High Court's decision demonstrates the patriarchal order in society, which is a disgrace on the nation. The decision demonstrated how vulnerable women are in society.

Thus, the Supreme Court correctly overturned the High Court's decree and rendered a decision in Hadiya's favour, granting her religious and spiritual freedom. Furthermore, the conversion was legal, and the legality of the marriage cannot be determined by a court of law if the parties have reached the age of majority.

If a person reaches the age of majority without parental interference, he or she has the right to marry and enter into a legal contract. The right to marry is not directly stated in the Indian Constitution, but it is understood in Article 21, which guarantees the right to life and personal liberty. Thus, Hadiya and Shafin Jahan's marriage was genuine, and the High Court's order to annul it was illegal.

End-Notes:

1. India Constitution. art. 226
2. India Constitution. art. 32, 1, 2.
3. India Constitution. art. 19.
4. India Constitution. art. 21.
5. Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368
6. Cox vs. Hakes ((1890) 15 AC 506)
7. Secretary of State for Home Affairs vs. O'Brien [(1923) AC 03]
8. Kanu Sanyal vs. District Magistrate, Darjeeling and Ors. [(1973) 2 SCC 74]
9. Ware vs. Sanders (124 NW 1081 (1910))
10. Ummu Sabeena vs. State of Kerala and Ors. ((2011) 10 SCC 781)
11. Charan Lal Sahu vs. Union of India ((1990) 1 SCC 613)
12. Anuj Garg and Ors. vs. Hotel Association of India and Ors. ((2008) 3 SCC 1)
13. Aruna Ramachandra Shanbaug vs. Union of India ((2011) 4 SCC 454)
14. Heller vs. Doe (509 US 312 (1993))
15. E. (Mrs.) vs. Eve ((1986) 2 SCR 388)
16. Secretary, Department of Health and Community Service vs. J.W.B. and S.M.B. ((1992) HCA 15)
17. AC vs. OC (a minor) ((2014) NSWSC 53)
18. Justice K.S. Puttaswamy vs. Union of India and Ors. [2017 (10) SCC 1]
19. Writ Petition(Civil) No. 215 of 2005