Hadiya ‘love jihad’ case: SC has a question — Can High Court annul a marriage?

Shafin Jahan moved the Supreme Court against the High Court order. But a two-judge bench, headed by the then CJI Justice J S Khehar, ordered an NIA investigation and said it would also examine the contention raised by her father K M Asokan that her conversion to Islam was done fraudulently. The court, however, agreed to hear the woman before taking a final decision on the matter.
Justice Khehar retired in the last week of July following which Shafin Jahan again approached the Supreme Court, seeking recall of its earlier order. Her journey from Akhila to become Hadiya

Article 226 of the Constitution details the power of High Courts to issue certain writs. It states: (1) Notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose;(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

But clause (4) states: The power conferred on a High Court by this Article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32.

Appearing for Shafi Jahan Tuesday, senior advocate Dushyant Dave contested the order for an NIA probe, saying “it struck at the very foundation of this multi-religious society” and was “sending terrible signals across the world”.

Dave’s tone invited the displeasure of the court with Justice Khanwilkar observing “you are so loud that we can’t hear you”. But Dave said he would be loud and pushed his argument: “Two of the seniormost leaders in the BJP are married to members from minority community. Will your lordships order NIA inquiry against them?”

He said the Supreme Court had exceeded its jurisdiction by ordering the NIA probe. “State is not in appeal, NIA is not in appeal. Your lordships have gone beyond jurisdiction and expanded the proceedings… there was no such prayer (for NIA probe). Court cannot go beyond the prayers,” Dave said.

CJI Misra said: “There are two legal issues to be dealt with. Firstly, whether the High Court can annul the marriage of a 24-year-old and secondly, about the NIA probe.” He took exception to Dave’s argument that the court could not go beyond the prayer in the petition. “I am not the one to tolerate such argument. This court has an expansive jurisdiction under Article 136. There are cases in which this court has said it can and it cannot. It depends on the facts and circumstances of each case,” he said and asked senior advocate Fali S Nariman whether he was right. Nariman replied in the affirmative.

Additional Solicitor General (ASG) Maninder Singh, who represents the NIA, was absent Tuesday. ASG Tushar Mehta, who appeared instead, said all arguments being advanced by Dave had already been examined by the court while ordering the NIA probe. “It was this court which asked us to probe the matter and we found a pattern (in such incidents of marriage in Kerala),” he said, adding he was confident that he would be able to convince the court.

The CJI, meanwhile, observed that Akhila’s father could not claim her custody as she was a grown-up. “Either we will appoint loco parentis or we will send her to a custodian. Father can’t insist on her custody,” he said. Loco parentis is the legal responsibility of a person or organisation to take on some of the functions and responsibilities of a parent.

In May, the Kerala High Court annulled the marriage between Shafi Jahan and Akhila Asokan alias Hadiya, calling it a sham and of no consequence in the eyes of the law. It concluded that the marriage was performed only to shield her from legal proceedings.

Last week, K M Asokan told The Indian Express he was waiting for the NIA to submit its report in the Supreme Court. “I will obey whatever the court says. Once the NIA submits the report, I hope I will also get a chance to read it. Then I will read it out to my daughter, and will be done with my job as a father,” he said. Asokan hoped the report would help Hadiya realise the “dangerous path” she had chosen by converting to Islam.