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

Kerala love jihad case: Appearing for Shefin Jahan on Tuesday, senior counsel Dushyant Dave vociferously contested the order for NIA probe saying "it struck at the very foundation of this multi-religious society" and was "sending terrible signals across the world".

Written by Ananthakrishnan G | New Delhi | Updated: October 4, 2017 12:28 pm
 Kerala love jihad, Kerala love jihad case, Love jihad, Kerala High Court, Kerala, Hadiya case, SC hadiya case, kerala, NIA, India news, Indian Express Hadiya ‘love jihad’ case: Shefin Jahan with Hadiya (Akhila). (File Photo)

The Supreme Court Tuesday said it would examine the question whether the Kerala High Court, by exercising its powers under the writ jurisdiction, could annul the marriage of a Muslim man to a Hindu woman who had embraced Islam. The bench of Chief Justice of India Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said they would hear on October 9 the fresh plea of Shafin Jahan who sought a recall of the Supreme Court’s earlier order which directed the National Investigation Agency (NIA) to probe whether there was a wider pattern of alleged love jihad in the case.

“The question is whether a High Court, on an Article 226 petition, can annul the marriage,” CJI Misra said while hearing the petition filed by Shafin Jahan whose marriage to Akhila Asokan alias Hadiya was set aside in May by the Kerala High Court which entrusted her custody to her parents. Hadiya’s father speaks: She is my life, have nothing against conversion but this is shady

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.

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  1. Amudhan Nattamai
    Oct 27, 2017 at 7:17 pm
    REligious conversions must be restricted. One year before mys sisters son converted to christianity to marry a christian both of them wouldn't be knowing anything about their respective religion. ' but both of them in future swill suffer cultural shocks. Without knowing the philosophy and teachings of a religion how a person can convert to ranother religion. I converted to Bahai religion in 1995 not for love marriage purp0ose but for new social order , when i came to know cremation is not allowed but only bural is allowed it was a violent shock to me because i always thought cremation as anatural way to end life.
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    1. Ajeya Biswas
      Oct 26, 2017 at 4:41 pm
      A question to Mr. Dushyant Dave, Can in a Democratic Secular Country a particular Community's men have Absolute Patriarchal Power like Arbitrary Divorce, After Divorce Contract Marriage, Child Marriage, Polygamy etc and while these exists why are you instead of demanding Uniform Civil Code to ensure equal Gender Rights for all, questioning other communities to take precaution to save their women from these Anti Women derogatory practices ?
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      1. Ml Pandit
        Oct 7, 2017 at 5:38 pm
        Pray the answer that SC finds for the question whether a HC can anal a marriage must be binding for all marriages, including the rarest of rare a Muslim girl marrying a Hindu boy?
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          M M
          Oct 4, 2017 at 3:31 pm
          D dave is a member of D-COMPANY
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            rajkal
            Oct 4, 2017 at 2:21 pm
            From the comments made by the father about the NIA report, he knew what kind of report is expected. That is the love jihad is real and daughter was forced in to marriage. High court also has infrinched the right of an individual for supporting the cause of BJP. Attorney general of Supreme court is not any better in interpreting individual freeedom as per Indian cons ution.
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              Dilip
              Oct 4, 2017 at 2:48 pm
              It is obvious if some foreign group want change the idea of india by islamic country the public and court will take action against it
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