Even as debate on Hadiya case rages on, Kerala HC recognises a woman's right to choose her partner

An adult can marry across caste colour or religion no one can stop them Kerala HC
news Law Monday, August 21, 2017 - 20:08

The Kerala High Court has said that a woman who has attained majority is free to marry anyone of her liking, even if that upsets her parents. 

Disposing off a habeas corpus filed by the parents of 19-year-old Muslim woman from Paravur, the court said on July 27 that it cannot restrict a woman from exercising her fundamental rights. 

Although parental authority can be exercised by the parents while their son or daughter remains as a minor, the same becomes limited when children attain majority, the court ruled. 

"There is no dispute about the fact that the expression of interest shown by the detenue is to have a marital tie with the first respondent. It is true that parental authority can be exercised by the parents while their son or daughter remains as a minor. But the moment they become major, the exercise of parental authority gets limited," judges AM Shaffique and Anu Sivaraman said. 

The case pertained to a habeas corpus filed by the parents of the young woman, alleging that first respondent Abdullah and her family had abducted their daughter and had put her in illegal confinement. 

"Becoming a major gives them the authority to exercise all their rights as a citizen and once they attain the age of marriage, they can choose their partner. The choice may not be to the liking of the parents. He/she may opt for a criminal or a convict, a person of different religion, caste, colour, language or even decide not to marry at all. The parental authority in such instances are of a limited nature," the court observed.

In the social scenario in our country, the court said, some children do accept and act on the wishes of their parents, but it is only "wishful thinking" to believe that they can make their children act in accordance with their wishes. 

Read a detailed copy on the judgement by Livelaw.

The case

According to the parents' petition, their daughter was a Class 12 student and had six months ago, complained that Abdullah was bothering her by calling her on the telephone. 

In May, Abdullah demanded that the parents give her away in marriage to him. After the parents disagreed, Abdullah came back with his father and relatives and allegedly assaulted the woman’s father and brother when they refused to let them inside the house. 

Following this, the parents of the young woman alleged that she was abducted by Abdullah and her family. A criminal case was subsequently filed against Abdullah and family. 

The parents then approached the court with the writ petition, asking for their daughter to be produced before the court. 

However, when the teenager appeared in court, she told the court that she had gone with Abdullah on her own free will and shared her desire to get married to him. Her parents argued that Abdullah and his father had criminal antecedents, including cases relating to abuse of women and demanded a psychological test be done on the girl. 

The court observed that it had to enforce a woman's fundamental rights and thereby allow her to choose her partner, whatever his background be. 

A different bench, a different case

Just a few months ago, another bench of the Kerala High Court had said upheld that the concerns of parents of a young girl who had converted to Islam and married a Muslim man were genuine, The court had annulled her marriage to a person of her choice. 

The case of Akhila (now Hadiya), who married Shafin Jahan, a worker of SDPI, created much furore after the HC nullified their marriage.

While the initial case was filed by Akhila’s father opposing her conversion to Islam and her decision to leave her house, a second petition alleged that there were efforts to marry her off to a Muslim man in order to take her to Syria to join the Islamic extremist outfit ISIS.

Although Akhila had argued that she was a woman who had the right to choose a religion of her choice and marry a man of her choice, the Kerala HC had struck down the marriage.

Akhila's father Ashokan's lawyer had argued that parental authority and control does not cease to exist the moment a child attains majority. 

"The authority of the parents continues even in respect of a person who has attained majority, to protect the said person from going astray," the learned counsel had argued. 

"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," the bench by Justices Surendra Mohan and Abraham Mathew observed. 

The court had justified its use of parens patriae by saying that 24-year-old Akhila was at "a vulnerable age" and that she could be exploited in many ways.  

Also read: From Akhila to Hadiya: What exactly is the Kerala ‘Love Jihad’ case all about

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