The dilemma of identity is a foremost alarm for man. Being the same we have come
across with an idea of associating with something greater than us. God is the
one who is above all, superior, divine not a human being. The public having same
idea of God approaching together started following the similar custom and
beliefs. The freedom of religion does not inferto each
individual can ensure whatever he feels under the veil of the religion.
Constitution of India provides restrictions on the litheness of religion.
purpose behind is not to abuse the profitability of the rights of the religion.
India is considered as the land of philosophy, devoutness and the origin of
development, was a natal place of different religious conviction. Religion is a
particular system of theories, belief and adoration. The religion is a set of
faith and belief which is held by group of people. There is a different religion and a piece individual
follows different beliefs and imposts.
Interview of Shafin Jahanv. K.M Ashok an case, where
a Hindu women named Hidaya convert herself to Islam religion, upon this her
that she had been ‘indoctrinated' into embracing Islam and alsoa victim of a
movement to convert Hindu women to another religion and fear to transfer them to
other country. It was consenting marriage between two and her conversion to
Islamwas of her own choice and will.
Taking in to the account, we can conclude that the subject matter here is no tone
But it is one of the women's freedom of choice and religion, human rights and
also to protect personal freedom.
Freedom of choice is an idea that is absolutely central to majority better life
which is not a new one. The significance of the quality of life of the people of
society in considering the accomplishment to free religious rules, it is quite
easy to perceive the consequence of freedom of
choice to religious appraisal and valuation. Freedom of choice and religion is a
modern idea and a formal concept. Freedoms to protect the right of the people
and aid them to take choices pretense serious problems applied to persons of
lessened ability. There is hierarchy of means
where we can characteristic freedoms to such people. Laissez-faire is basically an
idea where the law should not intervene in the affairs of individuals.
Freedom provides protection to choose that make their importance debatable.
have different values for different individuals, whereas the values of other
kinds of rights seem
to remain constant for all applicants. Freedom of speech protects both the
choice to speak and choice to be silent.1The state can forbid open exercise of
religion rather than commanding piety.2
Right to Freedom of choice which have alternative decisions and situations, generally, without
considering the precise preferences of the decision makers.
The power of making
decisions to get rid of preference difficulties to link freedom of choice with
power and from this we will arrive at responsibilities. The guarantee of freedom
values as a way of self expressions, self realizationsandself accomplishment. The constitution guarantees the free exercise of religion.
Strictly balanced choice is not the legacy of religious faith.
FACTS OF THE CASE
Akhila Ashokan who embraced herself to Islamic religionofherownchoiceandwillandgot
married to Shafin Jahan at the age twenty five years and changed her name as Hadiya Jahan. Her father K.M Ashokan filed a writ petition in High Court of
Kerala. He alleged that Hadiya
has been deceived and forced to turn into a Muslim. Her father also alleged that
Shafin Jahan had linked to extremist Muslim organizations to be used as a sex
slave or a human bomb and apprehended that Hadiya would apt to be moved out of
the India. All through the High Court Hadiya perpetuated that her marriage and
her conversion to Islam was of her own choice. An Affidavit was filed by his
daughter expressively pronouncing her marriage with Shafin Jahan and her
conversion to Islam. She asserted in front of the High Court that her conversion
to Islam was her faith of choice.
The impugned decision of the High Court an order to annulling the
nuptialconsidering it as sham providing that the nuptial is of no importance
in the code of law. The grounds behind the High Court judgement, in view of the
fact that marriage is one of the most essential
decisions in life, can also betaken only with the active involvement of her parents.Togiveher
in marriage and to act as a guardian is not the right of her husband.
The High Courtexercising Parens Patriae4jurisdiction observed the responsibility is caste
on it to make sure the security of the girls who are brought it. The
responsibility can merely be exercise by certifying that
parentsmustbegiventhe custody of Ms.Akhila. The authoritytoaffirm the marriage nulland
void, to entertain the Habeas Corpus petition, is manifestly in excess of
legalauthority. The Supreme Court in the view of the Parens Patriae hegemony of
the High Court to annulling the marriage in exercise of is held beyond
jurisdiction. In the petition of Habeas Corpus of major girl, appears before the
court state a fact that she is not under any illegal restrictions or
confinement, the role of the High Court's ends there. The question relating to
whether she is
marriedbyconversionofherownreligionorchoice,whetherthemarriagewas valid or not
would consider irrelevant to annulment of marriage and consider it as ‘sham',
would be an offence of habeas corpus jurisdiction.
The constitution of India administer women srighttomarryapersonofownchoice'instituted
in the inherent part of Article 21. It states that every individual has a
complete freedom to choose life partner of any faith, belief, religion, caste
etc. The state, law not even society can behest choice of partner.
The right to
choice cannot withdrawal except by the law which is extensively fair, just and
reasonable. In the present case state intervenes and supported the cause of Hidaya's father who file petition of Habeas Corpus against the daughter's choice
of marriage with the person of different religion and
faith. The state also supported father attitude patriarchal autocracy which has an
effect on others exercise of freedoms and liberties for fear which may have
affect free exercise of choice.
ARTICLE 25 OF INDIAN CONSTITUTION
If we go back in history, between 1930 to 1940, there were many princely states
that had implemented anti-conversion law. According to Indian constitution,
every citizen has a right to profess religion of his or her own choice.
Constitution does not allow forceful conversions. As per the Article 25 and many
judgments by the court, forceful conversions are complete ban in India.
Subsequently, after independence, Indian government provided ‘anti- conversion
bill' three times before the Lok Sabha. These bills were argued in 1954, 1960
and 1979 and it could not be approved due to the reasons. Orissa, in 1986 passed
the law which was shadowed by Madhya Pradesh.
Consider it was confronted before
Supreme Court. Ant- conversion laws have been adopted in several states like
Rajasthan, Gujarat, Arunachal Pradesh, Tamil Nadu, Himachal Pradesh and
Jharkhand shadowed the suit. Some of the states got the bill enacted. The
anti-conversion bill is no threat to the minorities, people should not fear it.
The bill will be discussed in the parliament and if requires the Supreme Court
care of every individual of the country. The Constitution of India provides
right of equality, freedom of speech and right of choice which will not be
limited through the bill. The aim of the bill is to restraint forceful
conversion. There are several instances, where known personalities like a singer
changed to other religion but there is no manner and cry. They converted as per
their will and own choice and we respect their choice and decision.
There is a need to know the dimensions of free religionin India. If someone ask me to elucidate
religion in a sentence –‘we are a free people with a free will, and a free
conscience, and free
intelligence. No one can force anyone to convert. When the entire world hated Jews,wehailed
them with open arms. This is our culture and it has been this way all these
while. The dogma
ofthegovernmentistorunthe country withamoralcode of conduct. Prime Minister Narendra
Modi is succeeding the same path. Caste system, which is fundamental part of
Hindu religion, creates so much negativity, externality in society. It does not
allow inter-caste marriage and inter-religious marriage. Since last six years we
have seen, there is a direct attack on our kitchen, attack on our choices to
have food and now there will be an attack on our choice, on whom tomarry.
A marriage can be dissolved at the request of the party in the law court.
Marital status is grant through directive and custom. Law has maintained the
valid conditions for marriage as perthe ‘Marriage Acts'. It guarantees the set
right when relationship runs assure. The privation of marital status is the
issue of serious consequence. The law may dictate the valid conditions of the
marriage as it may act the situation where a matrimonial tie can be null and
To continue the marital status of relationship deciding the best on whether they
should accept each
other, therearetreatmentsavailabletopartiesofmarriage. There is no role of
society in shaping
the choice of partners. Intimate personal decisions of social approval are not
the basis of
recognizing the partners. The own freedom from disapprobation the publicis
Constitution. We can choose to live, be a happy person, whatever the
circumstances are, the choice is ours.
LAW V RELIGION
The thought of all religion is lop-sided in character in India. In our country,
public from every religion has a hitch with person who practices any other
religion.Article 18 of the Universal
and every individual has authority to choose the faith or belief that suits his
sense of right and wrong. This particular idea is establish clearly by the
Supreme Court in the matter of Hadiya. The major contention was that can the
state agencies prevent with the choice of the individual
The Supreme Court had comedownhardonthemannerwhere the High
Court of Kerelatreatedthematter. AWritofHabeas Corpuswasturnedintoadeclarationthat
the marriage withher Muslim husband was void. The Supreme Court also decisively mentioned
that individual has a right to choose his faith and state has no right to
interfere. So the outright
the affirmative aspect of conversions and to leave it to the legislatures to
decide to make alaw to avert forcible conversions. So, forcible conversions can
never be a part of the Fundamental Right. In the case of Fr.Reverend
Stanislaus5the Supreme Court held that our Constitution gives the freedom of
sense of right and wrong to profess and propagate religious conviction. The
court had to review legislations conceded by Orissa and Madhya Pradesh to
also to put that faith into practice. Propagate would essentially mean that one
can also communicate or pass on your thought procedure to others. But the
transmission of the thought cannot be mean in a way as to persuade fear, so that
they become victims of false propaganda and they compensate their original
NO RELIGION TEACHES TO BRING ANOTHER RELIGION DOWN
According to the case of Lily Thomas v. Union of India6, the Supreme Court held
that the fundamental right of an individual to “entertain such religious beliefs
as a person to chooses”,
and personal liberty and freedom of others”.The law should not be used in such a
manner that it hasalarmingresult on the free speech and free expression was also
upheld in a previous decision of a Bench of three judges in S Khushboo v
Kanniammal7. In Navtej Singh Johar V
Code (IPC), while holding it is "clearly not only crazed and unclear but also
has alarming up shot on an individual's freedom of choice."The right "not to
believe" is also a replication of an individual's choice, and provisions such as
Section 295A, which is crazed, have a chilling outcome on thischoice.
Article 25 provides each and every individual to exercise freedom of any faith
or belief of hispower to choice. Freedom of religion includes freedom from
religion as well. Thus, every person has the autonomy of having have faith in
the religious values of any particular cult or else denomination. There is no
bar in the establishing or making of a group of people with
of Bombay9, (1954) the Supreme Court stated that "fundamental right has
specified to every individual to entertain such religious beliefs as a person to
chooses may be accepted by his judgment or freedom of conscience and religious."
Therefore, the Constitution of Indiaassureliberty of religion and acknowledge
the individual's independence to have a belief
they may proclaim it as a right of a new different religion. State or law must
not interfere with
The highest court of India has given legitimacy to those who believe in the "one
nation, one religion" slogan.
LAISSEZ FAIRE COMPARISON
Laissez faire is the most protective liberty and dignity for all individual
despite of age or capacity for choice. It says that every individual must
empower all freedoms in equivalent gauge. The term, laissez faire originates from
the place of individual integrity and liberty. Freedom is an end itself is an
inference. It means a person to be able to choose better
that whatischosenisthe independentofthewisdom. As the freedom of importance, the laissez
faire situation based on individual integrity need no special regulations for
people who arenot able to choose wisely. It presents an inside rational assert
on behalf of equivalent freedom for all but it is both unfair and unreasonable.
The conclusion was that legal incompetent should have individual dignity as
competent adults. In such cases like Cohen v California10, Roe v
Wade11it was held that freedom of choice is the basic decision of one's lifer especting
marriage, divorce, procreation, contraception and the children and the
upbringing of children
individual fruitful happiness. They have faith in liberty as the covert of
contentment and audacity is the covert of freedom.The line concluded by Deepak
Mishra in the Hidaya's case
wasthattherole of the courtis to see the person heldin custodyis presented before it. Finding
about his/her free choice and the person is free from illegal confinement. In
the case of Ummu Sabeena v. State of Kerela13, where the song of liberty is sung
with honesty and the choice of the individual appropriately respected and
discussed its reverence status as the importance guarantees.
In the matter of Bellotti v. Baird, in whicha woman denied to abort as choice
may hurt a loss far more significant.14If freedom comprises the forming of
balanced choices, its intelligent
isometrics stress practice.
The knowledge is on the main of manner of modifying freedom for
people whom the validations for individualism do not compass. In accordance to
the influential beginning, the right to live free of choice perhaps depends upon
the ability of choice, but attaining the ability to choose also depends on the
use of one's right and power.
Thus, we can validate the attribution of freedom by not presenting the ability
of choice since the singular change into a developed and healthy person in large portion on before
the gratitude of freedoms.
This Part sustains that, in which the individual is
not too competent or the choices are important to threat non-interference of an
individual. The surrogate approach to lawful freedoms also aid in evaluating the
legal treatment of uncontested custody measures following divorce.
RIGHT TO PROTECTION OF LIFE AND PERSONAL LIBERTY
As per constitution of India, Article 21 is vital where the country can
successfully inclined in the direction of the specified aim of formation of a
culture based on belief that every person is equal and deserve one and the
same constitutional rights and privileges. People should get the same or be
treated the same or be treated as equals in some respect. The Supreme Court has
grant and define the scope of this right so that it could be empty idealism that
has been converted into a judicially recognized element of the right to personal
The pronouncements of the true to life in personal liberty which have
been classified according to the nature and the level of legal sanction a right
is influenced of. In the case of UnniKrishnan15,it was first recognized that
article 21 is a core of Fundamental Rights and it has prolonged the scope of
article 21 by perceiving that life includes right of persons to life with human
dignity and personal liberty includes right to choice to all persons.
HADIYA IS UNDER ILLEGAL DETENTION
Hadiya is illegally restrained of her freedom established under Article 21 of
the Indian Constitution. The father of Hadiya didn't let her leave home with
Shafin Jahan, her husband. Constitutional bench of the honorable court opined
that the purpose of writ petition of Habeas Corpus is to provide safety of
release of an individual who is illegally confined of one's liberty16.
while dealing with writ of Habeas Corpus, the role of the court is to check that
the person is free from unlawful restrained. It is significant to note that Hadiya is a major and she has expressed her desire to go with Shafin, her
husband. The deprivation of marriage of
Hadiya is violation of complete right of an individual to choose life partner
and right to privacy
restrain the freedom of any person to choose in subject matter of marriage. In
the case of K.S
Puttuswamy 17, the honorable court in division of bench said that the capacity
to make decision
related to problems close to one's life is an enviable part of individual
personality. The incident
of individual freedom,underArticle16 of Universal Declaration of Human Rights emphasizes
on fundamental significance of marriage. The guarantee of “free exercise of
religion” means that there are no restrictions on the exercise of free religion
in accordance to the order of morality, or on the expression of free religious
ideas, saves people from imposing under the power of police, against “acts
inimical to the peace, good order and morals of society”.
In the facts of Lata
Singh v State of U.P18, where the Supreme Court provided support of a women's
right to choose. The petitioner, Lata Singh when she left her home to get married a man outside
of her religion. Another case of Gian Deviv. Supritendent Nari Niketan 19, it was held thatthere
is novalid ground for the petitioner detention in Nari Niketan against her choice.
the petitioner has stated explicitly that she does not want to know in Nari Niketan ,her detention
cannot be held to be in accordance with law. it directs that petitioner be set
at freedom. There is no particular privation that attaining the age of majority
has its own importance in an individual's personal life. He/she is authorized to
make his/her own choice so long as choice remnant, the courts cannot undertake
the role of super guardian.
As the law permits Hadiya is entitled to enjoy her
right of freedom of religion, law must not undertake the part of a Parens
Patriae being carried by the soppiness of the mother or egoism of the father.
The restriction of any state or of the public authority the law cannot be
discriminated among the person in religious matter; and the public authority is
not to make inquiries or take sign of freedom of belief or expression defines as
the resident to perform duty towards the State and
to the equals. It was also held that laws are made for the governmental actions,
while they cannot intervene with basic spiritual belief and opinion, “they may
While sustaining the constitutionality of the law, though it was in conflict with
the religious teachings,
a distinction was made between the provinces of belief from that of action. In
Cantwell v Connecticut 20, it was held that the Exercise of Free Religion clause
holds two main aspects- freedom to hold belief and freedom to act upon it.
The “free exercise of religion” has been interpreted to involve three concepts:
- Freedom of religious belief;
- Freedom of practice;
- Freedom of propagation of religious views.
protects not only religious belief and speech, but also conduct though the
latter is subject to State regulation, to be mentioned presently). The acceptance
of individual identity is the free choice in accordance with act.
The constitutionality guaranteed freedoms are above than the social values and
morals. The liberty is constitutional as well as human right. The freedom which
is entrenched in choice of faith is not permissible. Choosing a faith is a
substratum of individuality and the right of choice becomes a shadow. The belief
and freedom of choice of an individual are important for the construction of the
The woman converted herself to Islam. She then met a Muslim Man Shafin Jahan and
married him at the age of twenty-five. Right to protection of life and personal
liberty is an expression which includes right to carry on various such functions
and behavior sufficient to give expression to human self.
The right to privacy not only includes protection from unannounced incursion on
one's personal life but also such other things freedom from the choice of
parents in education, the woman's right on what occur to her own body in
conditions of choice in order to have an abortion. The freedom of speech and
expression includes the freedom of child to choose the means of instructions
cannot be excluded for the reason that they have no right impose rational
restrictions on this
- Wooley v. Maynard, 430 U.S. 705 (i977); West Va. State Bd. of Educ. v.
Barnette, 319 U.S. 624 (1943).
by the establishment clause.
- 2018 SC 343
- The term ‘Parents Patriae' create the state concern for the children who
are dependent and stated its ability to take children way from their natural
parents if there is need of the circumstances (Gross berg 2002)
- 1977 AIR 908
- 2013 (7 SCC653)
- (2010) 5 SCC600
- WRIT PETITION (CLR no 76 of 2016)
- 1953 AIR BOM 242
- 403 U.S 15(1971)
- 410 U.S 113 (1973)
- 394 U.S 557 (1969)
- (2011) 10 SCC 781
- 443 U.S. 622, 642, 643 n.23 (1979) (opinion of PowellJ)
- 1955 AIR 781
- Kanu Sanyal v District Magistrate, Darjeeling & Ors. AIR 1954 SC 510.
- WRIT PETITION (CIVIL .NO . 494 OF 2012)
- 2006 5 SCC 475
- Delhi (1976) 3 SCC 234
- 128. A.L.R .1352 of India. In Doe v. Bolton 21case, it is said that the
right to privacy means freedom of choice is the basic decision of one's life
respecting marriage, divorce, procreation, protection, contraception.
- 410 US 179 1972