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2018 (4) TMI 1887

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..... 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. In the case at hand, the father in his own stand and perception may feel that there has been enormous transgression of his right to protect the interest of his daughter but his view point or position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition, married the Appellant. 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 when both stood embedded to their vow of matrimony. The investigation by the NIA in respect of any matter of criminality may continue in accordance with law - Appeal allowed. As per Dr. D.Y. Chandrachud, J. The High Court, in the present .....

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..... subramanian, Prabhas Bajaj, Ankit Roy, Nimisha Menon, Akshay Amritanshu, Neel Kamal, B.V. Balaram Das, P.A. Noor Muhamed, Giffara S., Bilal Niamathulla, Madhavi Divan, A. Raghunath, C. Rajendran, M.G. Yogamaya, Nidhi Khanna, Ayush Puri, C.K. Sasi, Manukrishnan G., Nayantara Roy, Aishwarya Bhati, T. Gopal, Vaidruti Mishra, Vishwajit Singh, Jaideep Singh, Rakesh Mudgil, Gp. Capt. Karan Singh Bhati, Sayid Marzook Bafaki, Faisal M. Abookacker, Towseef Ahmad Dar, P.V. Dinesh, Swarupama Chaturvedi, 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' .....

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..... espect of any matter of criminality may continue in accordance with law. 3. Presently, we proceed to state the reasons. 4. The facts which are necessary to be stated are that Ms. Akhila alias Hadiya, Respondent No. 9 herein, aged about 26 years at present, the only child of Sh. Asokan K.M., Respondent No. 1 herein, and Smt. Ponnamma, had completed a degree in Homeopathic Medicine, BHMS (Bachelor of Homeopathic Medicine and Surgery) from 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 a .....

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..... g with one Sainaba filed Writ Petition being W.P. (C) No. 1965 of 2016 seeking protection from police harassment. 7. The Division Bench in W.P. (Criminal) No. 25 of 2016 persuaded Hadiya to go along with her father, Asokan, to her parental house but the said persuasions were all in vain as Hadiya was not willing to go with her father. The Division Bench, thereafter, interacted with Sainaba who expressed her unequivocal willingness to the 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 i .....

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..... ld continue to reside at Santhinikethan Hostel, Pachalam. When we asked the Petitioner's daughter as to whether she is willing to appear on another day, she submitted that she will appear on the next hearing date. Learned Counsel for the detenue also submitted that the detenue will be present in person on the next hearing date. We accordingly permit the detenue to reside at a place of her choice. We also record the 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 Pet .....

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..... etenue shifts her residence to a more acceptable place, without further delay. According to the learned Senior Counsel Sri. S. Sreekumar, she has to complete her House Surgeoncy at the Shivaraj Homeopathic Medical College, Salem. The college has a hostel for girl students where she is willing to reside and complete her House Surgeoncy. The Petitioner offers to bear the expenses for her education and stay at the 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 Cou .....

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..... ntended 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 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 represente .....

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..... and order, it opined that a girl aged 24 years is weak and vulnerable and capable of being exploited in many ways and thereafter, the Court, exercising the parens patriae jurisdiction, observed that it was concerned with the welfare of the girl of her age. It has been further observed by the High Court that the duty is cast on it to ensure 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 decla .....

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..... , we requested Mr. V. Giri, learned senior Counsel, who also represents the State of Kerala to assist in translating the questions posed to her in Court and the answers given by her. The range of questions that we posed basically pertained to her qualifications, interest in studies, 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 .....

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..... Halsbury observed as under: - For a period extending as far back as our legal history, the writ of habeas corpus has been regarded as one of the most important safeguards of the liberty of the subject. If upon the return to 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 t .....

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..... 25. In Ware v. Sanders 146 Iowa 233: 124 NW 1081 (1910), a reference was made to the Law of Habeas Corpus by James A Scott and Charles C. Roe of the Chicago Bar (T.H. Flood 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 t .....

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..... lt in choosing a man to whom she gets married. And, that is where the error has crept in. The High Court should have, after an interaction as regards her 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 appreh .....

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..... f guardianship over persons under disability. Parens patriae jurisdiction, it has been explained, is the right of the 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 .....

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..... 2 (of the Constitution)... , opined: 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 intere .....

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..... 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 minor) in need of protection. 45. Thus, the Constituti .....

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..... ne 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 facts of that case, again in like manner to the approach under the MCA 2005. 48. .....

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..... hey 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 situation cannot remotely be conceived. The duty of the Court is to uphold the right and not to a .....

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..... ried 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 student, in Salem. Accepting her request, this Court directed the authorities of the State to permit .....

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..... ad 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 too, with the connivance of the 7th Respondent with whom she was permitted to reside, by this Court. Hadiya .....

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..... g, 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 inherent powers of the High Court. The width of the domain which is entrusted to the High Court as a constitutional court cannot be disputed. Halsbury's Laws of England postulates: In the ordinary wa .....

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..... 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 by a constitutional court must ensure justice under and in accordance with law. 70. The principles which underlie the exercise of the jurisdiction of a court in a habeas corpus petition have been reiterated in several decisions of the Co .....

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..... ministration/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 of the Appellant and Respondent, who was a major had expressed a desire to reside in Kuwait, where she was pursuing her education, with her father. This Court observed thus: 9...She has, without any hesitation, clearly stated that she intends to go back to Kuwait to pu .....

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..... 39; 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 candour with the court has no bearing on the legality of her marriage or her right to decide for herself, whom she desires to live with or marry. 73. The exercise of the jurisdiction to declare the marriage null and void, while entertaining a petition for habeas corpus, is plainly in excess of .....

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..... 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 Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief an .....

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..... ther 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 persons of unsound mind. The exercise of that jurisdiction should not transgress into the area of determining the suitability of partners to a marital tie. That decision rests exclusively with the individuals themselves. Neither the state nor society can intrude into that domain. The strength of our Constitution lies in its acceptance of the plurality and diversity of our culture. Intimacies of marriag .....

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