The Supreme Court today restored the marriage of Kerala-based Hadiya, an alleged victim of love jihad, setting aside a nine-month-old order of the Kerala High Court.
The top court, however, clarified that the National Investigating Agency (NIA) may go ahead with the investigation in respect to any criminality.
In Kochi, Hadiya’s father K M Asokan said he would consider moving a review petition in the Supreme Court against its judgement.
He maintained that his daughter’s marriage with Shafin Jahan was an act of “adjustment” done by a group.
A bench of Chief Justice Dipak Misra said that the high court should not have annulled the marriage between Hadiya alias Akhila Asokan and Shafin Jahan by its order dated May 24, 2017 in a habeas corpus petition.
“We hold that the high court should not have annulled the marriage between appellant No.1, Shafin Jahan and respondent No.9, Hadiya alias Akhila Asokan, in a habeas corpus petition under Article 226 of the Constitution of India,” a bench also comprising justices A M Khanwilkar and D Y Chandrachud said.
The top court said it had directed the personal appearance of Hadiya on November 27, last year and she had admitted her marriage with Jahan.
“In view of the aforesaid, the appeal stands allowed. The judgement and order passed by the high court is set aside. Respondent No.9, Hadiya alias Akhila Asokan is at liberty to pursue her future endeavours according to law,” it said and added that NIA can continue its investigation.
On May 24 last year, a division bench of the high court had termed her marriage a “sham” and had annulled it, directing her return to the custody of her Hindu parents.
Earlier during the day, the apex court clarified that a court cannot interfere in the marriage of two consenting adult and cannot annul the marriage in a habeas corpus (a writ requiring a person under arrest to be brought before a judge or into court, for securing the person’s release) petition.
It had said that Article 226 gives the extraordinary power to the high courts to protect the constitutional right not to scuttle it.
Senior advocate Kapil Sibal, appearing for Jahan, said that as a matter of law no third party can interfere in the marriage between two consenting adults which is a fundamental right.
He said that high court had no jurisdiction to annul the marriage and it can be challenged only by the party to the marriage but no third party can interfere in it.
“The jurisdiction of marriage is not in the marriage of consenting adults and no investigating agency can interfere in the marriage. Even the father of girl can’t interfere,” Sibal argued.
Senior advocate Shyam Divan, appearing for Asokan, said that the high court was right in annulling the marriage and it has inherent jurisdiction under Article 226 of Constitution.
To this, Justice Chandrachud said, “There has to be some exception circumstances which warrant courts interference in the marriage like of a girl with a 65 year old man, out of poverty or illiteracy, where there was no free consent or the marriage should not have taken at the first place.”
The bench said that a court cannot interfere where there is free consent between the adults and it has called Hadiya and talked to her.
Divan said that this marriage of Hadiya was in an exceptional circumstances and the court was right in interfering in it as it can’t loose the oversight of a ‘vulnerable adult’.
The bench said that there was an habeas corpus petition before the high court and if there was no wrongful confinement, the matter ends there.
Divan added that high court found that there was a well oiled machinery working to use the marriage of Hadiya as a guise to put the matter out of the court’s reach.
Additional Solicitor General Maninder Singh, appearing for the NIA, said that its investigation in the case is over and look out circular has been issued against two persons who are suspected to have gone out of the country.
“You (NIA) can carry out the investigation with regard to the offences but you cannot touch the marriage. Investigate anything but marriage”, the bench said.
Singh said that marriage was just a ploy to get rid of the court’s jurisdiction but the court should not be handicapped to deal with the situation as there are ample evidences.
The apex court said that it will pass detailed verdict in the petition at a later stage.
The apex court had in August last year asked the NIA to probe the case of conversion and marriage of Hadiya, as the agency claimed a “pattern” was emerging in Kerala.
The matter came to the fore when Hadiya’s husband Shafin Jahan challenged a Kerala High Court order annulling his marriage and sending her to her parents’ custody.
On November 27 last year, the apex court had freed Hadiya from her parents’ custody and sent her to college to pursue her studies, even as she had pleaded that she should be allowed to go with her husband.