Habeas Corpus: Writ petition of Habeas corpus filed by respondent-father apprehending that her daughter (respondent no.9) aged 26 years was likely to be transported out of the country – Daughter of writ petitioner appeared before the Court and categorically declined to go with her parents and expressed her desire to stay with respondent no.7 – During pendency of writ petition she entered into marriage with appellant – By impugned order, High Court held that a girl aged 24 years is weak and vulnerable and capable of being exploited in many ways and while exercising parens patriae jurisdiction directed her custody to the writ petitioner-father – With these directions, the High Court declared the marriage between the appellant and respondent no.9 as null and void – On appeal, held: The expression of choice is a fundamental right under Arts.19 and 21 of the Constitution, if the said choice does not transgress any valid legal framework – Once that aspect is clear, the enquiry and determination have to come to an end – In a writ of habeas corpus, especially in the instant case, it was absolutely unnecessary to reflect upon the social radicalization – If there is any criminality in any sphere, it is for the law enforcing agency to do the needful but as long as the detenu 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 – 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 cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition, married the appellant – Therefore, High Court completely erred by taking upon itself the burden of annulling the marriage between the appellant and respondent no.9 when both stood embedded to their vow of matrimony – Constitution of India – Arts.19 and 21. (Per Dipak Misra, CJI and A. M. Khanwilkar, J.)
Habeas Corpus: Role of writ court in entertaining writ petition of Habeas corpus – Held: The pivotal purpose of the writ of habeas corpus is to see that no one is deprived of his/her liberty without 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 detenu is produced before it, find out about his/her independent choice and see to it that the person is released from illegal restraint – The issue is different when the detention is not illegal. (Per Dipak Misra, CJI and A.M. Khanwilkar, J.) Habeas Corpus: Writ of Habeas Corpus – If alleged detenu appears before the writ court and states that she was not under illegal confinement, there is no warrant for the Court to proceed further in exercise of its jurisdiction under Art.226 – Exercise of jurisdiction to declare the marriage null and void while entertaining a petition for habeas corpus is plainly in excess of judicial power – Constitution of India – Art.226. (Dr. D.Y. Chandrachud, J.) Constitution of India: Art.21 – Right of adult to marry a person of his or her own choice – Jurisdiction of High Court to annul marriage while entertaining writ of habeas corpus – Held: Deprivation of marital status is a matter of serious import and must be strictly in accordance with law – High Court in the exercise of its jurisdiction under Art.226 ought not to have embarked on the course of annulling the marriage – The Constitution recognises the liberty and autonomy which inheres in each individual – This includes the ability to take decisions on aspects which define one’s personhood and identity – The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual – Intimacies of marriage lie within a core zone of privacy, which is inviolable – The absolute right of an individual to choose a life partner is not in the least affected by matters of faith – The Constitution guarantees to each individual the right freely to practise, 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 – In deciding whether appellant is a fit person for writ petitioner’s daughter to marry, the High Court entered into prohibited terrain – 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 – Habeas corpus – Universal Declaration of Human Rights – Art.16. (Dr. D.Y. Chandrachud, J.) Doctrines/Principles: Parens Patriae doctrine – Invocation of – Held: The 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 – In the instant case, there was nothing to suggest that respondent no.9 suffered from any kind of mental incapacity or vulnerability – She was absolutely categorical in her submissions and unequivocal in the expression of her choice – Therefore, High Court erred in invoking Parens Patriae jurisdiction. (Per Dipak Misra, CJI and A.M. Khanwilkar, J.) Doctrines/Principles: Parens Patriae doctrine – 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 marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. (Dr. D.Y. Chandrachud, J.) Words and phrases: Parens Patriae – Meaning of, discussed. (Per Dipak Misra, CJI and A.M. Khanwilkar, J.)
Allowing the appeal, the Court
HELD: Per Dipak Misra, CJI and A.M. Khanwilkar, J.
1.1 The pivotal purpose of the writ of habeas corpus is to see that no one is deprived of his/her liberty without 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. [Para 27] [980-D]
1.2 In the instant case, the High Court, has been erroneously guided by some kind of social phenomenon that was frescoed before it. The writ court has taken exception to the marriage of the respondent No. 9 with the appellant. It felt perturbed. There was nothing to be taken exception to. Initially, respondent no.9 had declined to go with her father and expressed her desire to stay with the respondent No.7 before the High Court and in the first writ it had so directed. The adamantine attitude of the father, possibly impelled by obsessive parental love, compelled him to knock at the doors of the High Court in another Habeas Corpus petition whereupon the High Court directed the production of respondent no.9 who appeared on the given date along with the appellant whom the High Court calls a stranger. But respondent no.9 would insist that she had entered into marriage with him. The High Court should have, after an interaction as regards her choice, directed that she was free to go where she wished to. [Para 28] [980-F-H; 981-A-C]
1.3 The High Court further erred by reflecting upon the social radicalization and certain other aspects. 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 appellant and others to move respondent no.9 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 apprehension was not within the arena of jurisdiction regard being had to the lis before it. [Paras 29, 30] [981-C-D; E-F]
Ranjit Singh v. State of Pepsu (now Punjab) AIR 1959 SC 843 : [1959] Suppl. SCR 727; Kanu Sanyal v. District Magistrate, Darjeeling and Others (1973) 2 SCC 674 : [1974] 1 SCR 621; Ummu Sabeena v. State of Kerala and Others (2011) 10 SCC 781: [2011] 13 SCR 185 – referred to.
Cox v. Hakes (1890) 15 AC 506; Secretary of State for Home Affairs v. O’Brien [1923] AC 603 : [1923] ALL E.R. Rep. 442 (HL); Greene v. Secy. of States for Home Affairs [1942] AC 284 : [1941] 3 All ER 388 (HL); Ware v. Sanders 146 Iowa 233 : 124 NW 1081 (1910) – referred to.
P. Ramanatha Aiyar’s Law Lexicon (1997 Edn.) – referred to
2.1 Another aspect which calls for invalidating the order of the High Court is the situation in which it has invoked the parens patriae doctrine. Parens Patriae in Latin means “parent of the nation”. In law, it refers to the power of the State to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection. “The parens patriae jurisdiction is sometimes spoken of as ‘supervisory’”. [Para 31] [981-G]
Charan Lal Sahu v. Union of India (1990) 1 SCC 613 : [1989] 2 Suppl. SCR 597; Anuj Garg and Others v. Hotel Association of India and others (2008) 3 SCC 1 : [2007] 12 SCR 991; Aruna Ramachandra Shanbaug v. Union of India (2011) 4 SCC 454 : [2011] 4
SCR 1057; State of Kerala v. N.M. Thomas (1976) 2 SCC 310 : [1976] 1 SCR 906 – referred to.
Thomasset v. Thomasset [1894] P 295; City of Cleburne v. Cleburne Living Center 473 US 432, 439-41: 105 S Ct 3249 : 87 L Ed 2d 313 (1985) – referred to.
2.2 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. The Constitutional Courts may also act as Parens Patriae so as to meet the ends of justice. But the said exercise of power is not without limitation. The courts cannot in every and any case invoke the Parens Patriae doctrine. 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. There is nothing to suggest that she suffers from any kind of mental incapacity or vulnerability. She was absolutely categorical in her submissions and unequivocal in the expression of her choice. [Paras 39, 45, 52] [984-E-F; 986-E-F; 988-G] Heller v. Doe 509 US 312 (1993); E. (Mrs.) v. Eve [1986] 2 SCR 388; Secretary, Department of Health and Community Service v. J.W.B. and S.M.B. [1992] HCA 15 (MARION’S Case) : (1992) 175 CLR 218;
AC v. OC (a minor) [2014] NSWSC 53; DL v. A Local Authority and others [2012] 3 All ER 1064; Re: SA (Vulnerable Adult with Capacity : Marriage) [2005] EWHC 2942 (FAM); In Re F (Mental Patient:
Sterilisation [1990] 2 AC 1; A Local Authority v. HB, MB, ML and BL (By their Children’s Guardian) [2017] EWHC 1437 (Fam); A Local Authority v. Y. [2017] EWHC 968 (Fam) – referred to
3.1 The expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they 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. [Para 53] [989-A-C]
3.2 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 respondent no.9 when both stood embedded to their vow of matrimony. The impugned order is set aside, however, the investigation by the NIA in respect of any matter of criminality may continue in accordance with law. [Paras 54-56] [989-D-H]
Per Dr. D. Y. Chandrachud, J. (Supplementing)
HELD: 1. 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. [Para 14] [996-B]
Gian Devi v. Superintendent, Nari Niketan, Delhi (1976)
3 SCC 234; Girish v. Radhamony K (2009) 16 SCC 360; Lata Singh v. State of U.P. (2006) 5 SCC 475: 2006 (3) Suppl. SCR 350; Bhagwan Dass v. State (NCT of Delhi) (2011) 6 SCC 396: [2011] 6 SCR 330; Soni Gerry v. Gerry Douglas (2018) 2 SCC 197; Kanu
Sanyal v District Magistrate, Darjeeling (1973) 2 SCC 674: [1974] 1 SCR 621 – relied on
State of Orissa v. Ram Chandra Dev and Mohan Prasad Singh Deo AIR (1964) SC 685; Keshav Singh (1965) 1 SCR 413; T K Rangarajan v. Government of T.N. (2003)
6 SCC 581: [2003] 2 Suppl. SCR 251; Roshan Deen v. Preeti Lal (2002) 1 SCC 100 : [2001] 5 Suppl. SCR 23; Dwarka Nath v. ITO, Special Circle D-ward, Kanpur [1965] 3 SCR 536; Naresh Shridhar Nirajkar v. State of Maharashtra [1966] 3 SCR 744; M V Elisabeth v Harwan Investment and Trading (P) Ltd. 1993 Suppl.
(2) SCC 433 : [1992] 1 SCR 1003 – referred to.
2. The schism between respondent no.9 and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a ‘just’ way of life or ‘correct’ course of living for respondent no.9. She has absolute autonomy over her person. Respondent no.9 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. The High Court 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 respondent no.9, 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 the appellant only to inform the court of their marriage. How respondent no.9 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. 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. [Paras 16, 17] [998-D-G]
3. Deprivation of marital status is a matter of serious import and must be strictly in accordance with law. The High Court in the exercise of its jurisdiction under Article 226 ought not to have embarked on the course of annulling the marriage. The Constitution recognises the liberty and autonomy which inheres in each individual. This includes the ability to take decisions on aspects which define one’s personhood and identity. The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, 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 law prescribes conditions for a valid marriage. It provides remedies when relationships run aground. Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution. In deciding whether appellant is a fit person for respondent no.9 to marry, the High Court has entered into prohibited terrain. [Para 19] [999-C-G]
4. Article 16 of the Universal Declaration of Human Rights underscores the fundamental importance of marriage as an incident of human liberty. [Para 20] [999-H]
5. 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 and faith, including whether to believe 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. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. 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. [Para 21] [1000-C-F]
Justice K. S. Puttaswamy v. Union of India (2017) 10 SCC 1; Common Cause (A Regd. Society) v. Union of India (2018) 5 SCC 1 – followed
6. The High Court, in the present case, has treaded on an area which must be out of bounds for a constitutional court. The views of the High Court have encroached into a private space reserved for women and men in which neither law nor the judges can intrude. The High Court was of the view that at twenty four, respondent no.9 “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. [Para 23] [1001-C-F]
7. Whether or not respondent no.9 chose to marry appellant was irrelevant to the outcome of the habeas corpus petition. Even if she were not to be married to him, all that she was required to clarify was whether she was in illegal confinement. If she was not, and desired to pursue her own endeavours, that was the end of the matter in a habeas corpus petition. The fact that she decided to get married during the pendency of the proceedings had no bearing on the outcome of the habeas corpus petition. Constitutionally it could have no bearing on the outcome. [Para 25] [1002-D-E]
8. During the course of the proceedings, this Court by its interim order had allowed the National Investigation Agency to assist the Court. Subsequently, NIA was permitted to carry out an investigation. NIA may exercise its authority in accordance with the law within the bounds of the authority conferred upon it by statute. However, the validity of the marriage between appellant and respondent no.9 shall not form the subject matter of the investigation. Moreover, nothing contained in the interim order of this Court will be construed as empowering the investigating agency to interfere in the lives which the young couple seeks to lead as law abiding citizens. [Para 26] [1002-E-G]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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