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Monday, July 16, 2018

Supreme order

Judgment in Hadiya case is a robust defence of the individual’s rights against the writ of clan, community, family

By: Editorials | Updated: April 11, 2018 1:15:11 am
Supreme Court, hadiya, inter caste marriage The court has laid out the ways in which the HC was “erroneously guided” into making an “absolutely unnecessary” order.

Nearly a year ago, the Indian citizen’s — especially if she were a woman — right to life and liberty stood severely constricted by a judgment of the Kerala High Court (HC). The court had annulled the marriage of a 24-year-old adult, Hadiya, arguing that a girl her age was “weak and vulnerable,” and that “marriage being the most important decision in her life, [it] can also be taken only with the active involvement of her parents”. Last month, the Supreme Court (SC) struck down the HC judgment in a brief order. On Monday, in a significant and much-welcome detailed judgment, the SC has strongly reaffirmed the individual’s inalienable right to choose her way of life, her religion and the person she wants to marry.

In two separate but concurring judgments, one by Chief Justice Dipak Misra and Justice A M Khanwilkar, and the other by Justice D Y Chandrachud, the court has laid out the ways in which the HC was “erroneously guided” into making an “absolutely unnecessary” order. “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 Hadiya,” the court said. Hadiya’s father had filed a habeas corpus at the HC alleging that she had been brainwashed into converting to Islam by radical elements. The court, in fact, reaffirmed that “choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme. They form the essence of personal liberty under the Constitution”.

Surprisingly, it took nearly a year of litigation for the apex court to undo the astonishingly regressive implications of the judgment — for a significant portion of that time, Hadiya was forcibly separated from her husband and kept in her parents’ custody. The judgment is also welcome for its acknowledgment of how perilously the courts teetered towards crossing the line. “The months which Hadiya lost, placed in the custody of her father and against her will cannot be brought back. The reason for this concurring judgment is that it is the duty of this court to ensure that the valued rights of citizens are not subjugated at the altar of a paternalistic social structure.” Remarkably, through all of these months, it was the voice of a 24-year-old that rang out in clarity and confidence in what she had chosen to make of her life. One hopes this judgment will also protect those less articulate and brave — and steer the courts towards a more robust defence of their rights, against the powerful writ of clan, community and family.

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