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Right to Marry by Choice- Shafiq Jahan v. KM Asokan:

In a landmark decision, Shafiq Jahan v. KM Asokan, the Supreme Court has set a precedent for the Indian society. The apex court of India, by overruling the decision of the Kerala High Court, has upheld that to marry a person of one’s own choice is a fundamental right. The court has found it to be an integral part of the Indian Constitution conferred by Article 21 that guarantees the Right to life. The three-judge bench ruled in favor of freedom of choice and held that no court shall extend its jurisdiction to battle against the choice of a person because fundamental and human rights are above the social and moral values of any society.

The factual matrix of the case involves a marriage between an adult Hindu girl and an adult Muslim boy. The father of the girl was against this marriage and he filed a habeas corpus petition against the daughter’s choice of marriage with a person of different religion and faith. The Kerala high court admitted the petition and enforced the Parents patriae jurisdiction to declare this marriage as null and void.

Parents patriae jurisdiction is not a recent concept and has been originated in the 13th Century in the United Kingdom. The literal meaning of this principle is the parent of the nation. It prevailed as a power in the hands of King to protect the rights of those persons who were unable to look after themselves. In the current democratic times where there is the rule of the king, the Courts have been given this supervisory power to ensure the welfare of the child as the paramount concern and to meet the ends of justice.

Nevertheless, in this case, on filing an appeal before the Supreme Court, the apex court clarified the scope and limitations of the principle of Parents Patriae jurisdiction. It held that Kerala High Court has abused the supervisory power by extending the jurisdiction it has been enforced with.

The court observed that the Parents Patriae principle can be made applicable only in those cases where; firstly, the person is of unfit mind and/or is not an adult and secondly, the said person has no parent/legal guardian or have an abusive or negligent parent/legal guardian. This principle does not apply to the adults who are of a competent mind and are able to take decisions of their own lives.

The judges of the apex court were also of the opinion that by entertaining the writ of Habeas Corpus, the Kerala High Court exercised excessive judicial power and has set an example of judicial overreach.

In the case of Green v. Secy of State Home Affairs, it was held that the writ of Habeas Corpus is applied in cases where there is a need to enable the immediate determination of the right to the applicant’s freedom. Therefore, the scope of the Habeas Corpus petition ends at the point when an individual has been produced before the court and his liberty has been safeguarded. Thus, it was held that making marriage null and void cannot be a carved out as an exception to the writ. The fallacy which was created at the end of the High Court was further rectified by the Supreme Court through overruling the decision of the former.

The jurisprudence of choice forms the superstructure of the concept of personal autonomy. The faith and expression of choice are held to be fundamental for the fructification of the right. The court in Gian Devi v. Nari Niketan stated that no fetters can be put on the right to choice of an adult person. Democracy permits an individual to make decisions for oneself as the person enjoys personal autonomy over its mind, soul, and body.

In the present case, the Supreme Court advocated the synthesis of choice and liberty and stated that song of liberty is sung with sincerity and the choice of an individual and upheld that parental love or concern cannot be allowed to fluster the right of choice of an adult in choosing the partner of one’s choice for marriage. Certainly, this decision has fortified the constitutional liberty of making the self-decision choice for oneself.


Sahajveer Baweja is currently in the 3rd Year (B.A.LL.B.) of National Law University, Patiala,

You can contact them at: https://www.linkedin.com/in/sahajveer-baweja-893588158?originalSubdomain=in Editor: Drishti Saxena

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