The high court decision is a signal contribution to rescue jurisprudence
The judgment of the division bench of the Kerala high court in Akhila’s case has evoked not just rambunctious debates but even inflammatory protests on the street with an apparent contemptuous tenor. A hartal that followed showed the forceful conversion of an individual dispute into a massive religious affair. It all happened when the father of a woman who attained majority sought a habeas corpus writ to get his daughter rescued from being ‘exported’ after a deceptive conversion to another religion. The court allowed the request and granted custody of the detenue to her father.
Questions are many. Whether the judgment is subjective or does it simply reflect the opinions or even proclivities of the robed umpires? Does it meddle with well-recognised principles of freedom in religious or marital choices?
There are no precedents on facts. A judgment, in essence, rests on facts of a given case. In normal circumstances, the court does not interfere with the decisional autonomy of a major daughter in the case of marriage or even religious conversion. However, as Justice Holmes put it, life of the law is not logic but experience. Though the woman, by invoking her freedom, in the case chose strangers rather than her parents “to protect” her, the court by way of the unconventional judgment directed her custody to her father.
Justice Surendra Mohan and Justice Abraham Mathew are erudite judges of the highest court in this tiny state. The unusual judgment, in my view, is an adjudicative imperative in view of the unusual facts. The judges have given more than a dozen reasons scattered over the verdict to justify their conclusion. Removal of the detenue to an undisclosed destination, the mysterious ambiance of the alleged marriage, a casual advice for marriage given by an unknown lady, the undue and massive influence over the woman, the clear roguery displayed even before the court, submission of affidavits by the same detenue woman with different names at different points of time, the striking resemblance with an earlier episode of strategic and deceptive conversion and equally strategic marriage, the enthusiasm to hush up the factum of marriage, an apparent sponsorship for the whole events including the expensive litigation and the organizational backing for the whole process that led to so-called conversion and so-called marriage are some of the convincing reasons which the court has given in support of its conclusion. Clearly, the players were mighty and they used every trick of the trade, which the court rightly detected and rejected.
It is factually fallacious and legally erroneous to think that attainment of majority, per se, leads to automatic cessation of parens patriae jurisdiction. In Heller (1993), the US Supreme Court relying on Addington’s case held that “the state has legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care for themselves”. A major man or woman may have a poor understanding of people or society or situations. The concept of “mental age” coined by Alfred Binet with the assistance of Theodore Simon is not alien to juridical evaluation. David Wechsler in 1955 had evolved a standard test called “Wechsler adult intelligence scale”.
There could be instances of intellectual disability that make a person vulnerable to organized efforts for social or religious abduction.
Earlier, in ordinary individual disputes, the court has held that the decisional autonomy of the major offspring is not absolute or unconditional (See Dr Lal Parameswar vs NN Ullas – 2014). This judgment was delivered by following an old full bench decision in Sadanandan’s case (1974) which recognized parental authority over a major daughter in given circumstances. The bench relied on certain broader principles laid down in Agar-Ellis vs Lascelles 1883 (24) Law Reports Chancery 317. Another division bench, in Parasandhkumar (1992) held that “having control over aged girl by the parents will not amount to illegal custody” and “normally (the parents) will be the proper persons to take decisions concerning the career and future of their children”. In Sreekesh vs Mohammed Ashraf (2002) the court said that “it is the responsibility of the parents to see that the daughter is not cheated”. These judgments were however, criticised by hyper technical and purely legalistic freedom arguments which essentially ignored the empirical, societal and even contextual aspects of the case.
Following the verdict of the Supreme Court in Nil Rattan Kundu (2008), the Punjab and Haryana High Court also has said that “a writ court while exercising parens patriae jurisdiction owes a bounden duty to act in the best interest of the guardee, keeping in view his/her care, protection, health, education, intellectual development, comforts, contentment and congenial environment, along with moral and ethical values”.
In Akhila’s case, the court found the repetition of an organised effort by religious fanatics to commoditise a tender-aged woman to achieve their dubious ends. No legal principle could be tested by disconnecting it from the factual matrix. The methods of protest after the judgment, in a way, endorsed the correctness of the juridical apprehensions.
Earlier, in Shahan Sha (2009), the court held: “Inter religious marriages, arising out of love affairs or otherwise, are to be recognized and promoted. …….. But (in certain cases), it is not love that is prominent, but religion. Forcible, compulsive or deceitful conversion takes place in such cases. Nobody would say that it is a healthy trend. Love is divine. It has no barriers of religion, caste or creed. But under the pretext of love, there cannot be any forcible, compulsive or deceitful conversion. It destroys the divine and sublime love”.
The instructive judgment by the division bench written in simple language is a signal contribution to the rescue jurisprudence evolved by the Kerala high court in the peculiar socio-political situation in the state, where religious extremism has its toxic share.
Kaleeswaram Raj is a lawyer in the Supreme Court and Kerala high court