Hearing in the controversial Kerala marriage case in the Supreme Court was adjourned abruptly on Monday after the petitioner’s counsel referred to the political marches of BJP President Amit Shah and Uttar Pradesh Chief Minister Yogi Adityanath in the state and the bench headed by Chief Justice of India took strong exception to it.
The court, which deferred the hearing to October 30, reiterated the question whether the High Court while hearing a Habeas Corpus petition could annul the marriage.
“We will not hear you today…You are in Supreme Court, you are bringing all sorts of people. You have to restrict yourself to Constitutional questions”, the bench, which also included Justices A M Khanwilkar and D Y Chandrachud, told senior counsel Dushyant Dave who referred to recent rallies by Shah and Yogi in Kerala.
Dave represented petitioner Shafin Jahan whose marriage to Hadiya (Hindu girl Akhila who had converted to Islam) was annulled by the Kerala High Court in May this year. The court also gave her custody to her parents. Her journey from Akhila to become Hadiya
Jahan challenged this in the Supreme Court where a bench, headed by then Chief Justice of India J S Khehar, said it would also look into claims by her father that there was more to the case than meets the eye and ordered an NIA probe into it. Jahan approched the court again on September 20 after Justice Khehar demited office and Justice Misra had taken over as the new CJI, seeking recall of its order directing NIA probe. It was alleged by the bride’s father that the woman was fraudulently converted for recruitment to Islamic State’s mission in Syria and Jahan was only a stooge.
Opening his arguments, Dave said “there was great sensitivity to this matter” and cited President Ram Nath Kovind’s statement on Sunday that lauded the state for its pluralistic character.
“We are not interested in politics on what CPM or BJP does…There is a serious attempt to vitiate the atmosphere in the matter of inter-faith marriages. Interfaith marriages are part of our culture, tradition,” Dave said.
His objection was to an impleading application filed by Bindu Sampath, the mother of a girl from Kerala who, too, converted from Hinduism to Islam and married and is now believed to be in ISIS-controlled territory in Afghanistan. Dave said: “This impleadment application is an attempt to broaden the matter…to sustain the NIA investigation.”
“We all have children. They are entitled to their views,” he said adding the HC order had taken away the woman’s liberty.
He then went on to refer to rallies by Adityanath and Shah in Kerala and said, “Your Amit Shah goes to Kerala and holds rally…Uttar Pradesh Chief Minister Yogi Adityanath went to Kerala and makes statement about Love Jihad.”
To which Justice Chandrachud said: “We agreed to hear you. You are a senior counsel. Don’t speak like this.”
Additional Solicitor General Maninder Singh, appearing for the NIA, objected to Dave’s comments and said: “He has a pattern. He shouts and browbeats others”.
Dave replied: “At least, I do it inside court, not outside, like your government.”
This invited more protests from the ASG who said Dave’s comments were “obnoxious” and “unpardonable”.
Dave added: “They are using it to campaign (politically)”.
Said Justice Chandrachud: “We do not have to comment on political personalities. If we start doing that, how do we insulate ourselves from politics? We keep the legislative and the executive away from our hearings and functions. You should reduce the pitch of the submissions made here”.
The judge further said: “Unless a political personality’s conduct directly affects a case, let us keep it out of here.. We do not have to bring the extra-legal authority here who is unrelated.”
Dave sought to know, “Am I not entitled to say political parties are using this?”.
The CJI replied: “Whatever you can say you can’t. You cannot make a speech.”
The court told the counsel that they had adjourned many matters to hear the Kerala matter but would not hear it today after what had happened. “You have actually bulldozed the case on your side with your arguments”, the CJI added. Dave responded: “If your Lordships don’t want to hear it, don’t. But don’t put it in my mouth.”
CJI Misra meanwhile repeated the question he had raised during the last hearing: “Whether in a Habeas Corpus petition, a High Court cannot annul a marriage”.
He added, fundamentally, the willingness of a person need not be doubted unless he of she is not in the frame of mind to give such consent.
To this, the ASG said the High Court had referred to five judgments which had said that “parental authority may be invoked by High Court in certain cases…if person is incapable of taking decision”. He added that in this case, there was “indoctrination” and the people behind it are trained in hypnosis indicating that the consent was vitiated by the same.
Dave protested saying the NIA probe was “wholly unsustainable”. He added that “they have abused Your Lordship’s order”.
The CJI observed that in Habeas Corpus petitions, the HC’s power to intervene was limited to circumstances where there is fear of physical harm or where she is psychologically stressed. He added that a father cannot claim custody saying she was his daugher.
The court asked senior counsel V Giri who appeared for the Kerala Government what the legal position in the case should have been. Giri answered that according to the “purely legal” view, the HC could not have annulled the marriage but added that each case had to be seen on the basis of its facts and circumstances.