Hadiya case: SC again asks if Kerala HC can annul marriage between two consenting adults

A bench of headed by Chief Justice Dipak Misra questioned whether the High Court could nullify a marriage between "vulnerable adults" after the father of the 25-year-old woman Hadiya justified the order.

The apex court had on January 23 made it clear that the National Investigation Agency cannot probe the marital status of Hadiya and Shafin Jahan.. PTI Photo

NEW DELHI: The Supreme Court today asked whether the Kerala High Court was justified in exercising its powers to nullify the marriage of a woman, an alleged victim of 'love jihad', and can a roving inquiry be ordered into the issue of consent between two adults to marry. A bench of headed by Chief Justice Dipak Misra questioned whether the High Court could nullify a marriage between "vulnerable adults" after the father of the 25-year-old woman Hadiya justified the order. "Can a court say a marriage between the consenting adults is not genuine? We cannot say that she married the right person or the marriage was in her best interest. She came to us and told that she married by her own choice", a bench also comprising Justices A M Khanwilkar and D Y Chandrachud said. Senior advocate Shyam Divan, appearing for Hadiya's father Asokan, contended that the Kerala High Court was justified in nullifying the marriage under Article 226 of Constitution and exercised its power considering the facts and circumstances of the case. "The high court exercised its parens patriae (legal protector of citizens unable to protect themselves) jurisdiction while considering the peculiar facts and circumstance of this case. It considered her (woman) as a vulnerable adult. The materials were before the court to show that a well oiled machinery was working for sending people abroad from Kerala to work as sex slaves in Syria," Divan said. He said this marriage was used as a "charade" to prevent the High Court from exercising its Article 226 jurisdiction and keep her out of the reach of courts. To this, the court said, "What troubles us is that can there be a roving enquiry on the marriage of two consenting adults to find out whether there was consent. Was the high court justified in nullifying the marriage of a vulnerable adult under Article 226, is a pure question of law". Divan said that facts and circumstances are different in this case and read out a transcript of conversation between Hadiya and her father. “She said on telephone to her father that she wants to go to Syria to rear sheep. Her father was alarmed after hearing this, as he can't believe that his well qualified daughter wants to go to Syria to rear sheep. hen he started enquiring and found that there were several cases in Kerala in which people were trafficked abroad on marriage pretext," he said. However, the court said "Marriage and investigation are two different things. As far as marriage is concerned, it does not warrant any investigation. Investigation has nothing to do with it. You can investigate any other thing." Divan said the woman was actually a victim of a “trafficking exercise” in which people were sent abroad for joining extremist groups. The bench observed that if there was an issue of trafficking of citizens, then the government had all the power to stop it on the basis of credible information. "If citizens are travelling abroad to be part of trafficking, the government has the authority to stop them. We don't stand in the government's way to stop the people from going abroad in such case. We are not going into that area. But in personal law, we cannot annul marriages because she did not marry the right person,” the top court said. At the fag end of the hearing, senior advocate Kapil Sibal, appearing for Hadiya's husband Shafin Jahan, said Divan was being “unfair” to the court and denied that the woman wanted to go to Syria to rear sheep. "Instead, it was her father, upset by her conversion to Islam and subsequent marriage, who told her that she would be trafficked to Syria," he said. The bench posted the matter for further hearing on March 8. Hadiya, the woman who is at the centre of an alleged love jihad controversy, had recently filed an affidavit before the top court claiming that she had willingly converted to Islam and wanted to live with Jahan as his wife. The matter had come to fore when Jahan had challenged the Kerala High Court's order annulling his marriage with Hadiya 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 studies, even as she had pleaded that she should be allowed to go with her husband. The apex court had on January 23 made it clear that the National Investigation Agency cannot probe the marital status of Hadiya and Jahan.