Hadiya- We Can't Expand The Scope Of This Case Beyond The Question ‘Whether HC Can Nullify Marriage Between Two Consenting Adults’: SC

“Can the High Court, in exercise of its jurisdiction under Article 226, nullify the marriage between two consenting adults? The marriage may be illegal or it may be void, but does the High Court have the power? We are only concerned with this question of law”, said the Bench.The hearing in the petition filed against the Kerala High Court judgment, allowing the habeas corpus writ petition filed by Hadiya’s father and nullifying her marriage with Shafin Jahan, commenced on Thursday with Senior Counsel Kapil Sibal, appearing on behalf of Hadiya and her husband Shafin Jahan, submitting, “Nothing remains to be done in this matter. Hadiya has appeared before this court and been interacted with. This court had passed an interim order then. Please pass an order now”.Chief Justice Dipak Misra remarked, “The issues at hand have been compartmentalised- one, regarding the marriage, which may possibly not have been voluntary; and secondly, the investigation by the NIA, which is not to interfere with the relationship between two consenting adults”.ASG Maninder Singh, representing the NIA, sought to advance, “The investigation is virtually complete, except for two persons who absconded to Yemen”. The bench also remarked that they are not interested in the allegations levelled against the NIA by Hadiya.The Chief Justice proceeded to state, “Can the High Court, in exercise of its jurisdiction under Article 226, nullify the marriage between two consenting adults?The marriage may be illegal or it may be void, but does the High Court have the power? We are only concerned with this question of law”.The bench of Chief Justice Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar also granted the liberty to transfer Hadiya, freshly impleaded as Respondent no. 9, as Petitioner no. 2. It was also directed that the affidavit filed on behalf of Hadiya on Tuesday shall stand ignored.In response to the submission by an advocate appearing for Respondents no. 7 and 8, being the Sathyasarini Charitable and Educational Trust and Ms. Sainaba, associated with the Trust and the president of the Popular Front of India’s women’s wing, that the said respondents be allowed to file a counter affidavit and move an application for SIT inquiry in view of the allegations by Hadiya’s father regarding the indoctrination and forceful conversion and marriage of his daughter, the Chief Justice remarked,“We cannot say what you are doing or are not doing. We cannot broaden the scope of litigation”. “Your concerns are with respondent no. 1 (the father). We cannot deal with them here”, concurred Justice Chandrachud.“Respondent no. 1 is an innocent person. There are forces behind him...”, insisted the advocate. Cutting him across, the Chief Justice reprimanded, “There has to be a level of arguments in this court”.At this point, Mr. Sibal said, “Please reserve the order”.Proceeding to make his submissions, Senior Counsel Shyam Diwan, appearing on behalf of Respondent no. 1, advanced, “In view of the plenary jurisdiction of the High Court under Article 226 and, secondly, on account of the facts and circumstances of the case, the High Court had the power to nullify the marriage”.Cutting him across, Mr. Sibal interjected, “I have objections to this submission. All these claims regarding IS business...where will this take us?”Mr. Diwan continued to draw the attention of the bench to the chain of events- “A young adult was sought to be trafficked outside of India...these are extremist groups based in the ISIS territory who employ like persons to serve on the frontline or conduct terror attacks...the women so trafficked are utilised for sexual comfort roles and to raise the next generation of terrorists...the marriage in such cases is only a trap to obstruct justice and conveniently convey an individual outside India”.“The first writ petition filed by the father was disposed off in January, 2016 by the High Court proceeding on the concept of consenting adults...subsequently, in July, 2016, the father spoke with Hadiya on the phone when she expressed a desire to go to Syria to rear sheep. This conversation he could not record. However, the following day, there was another telephonic conversation which he recorded and where this discussion regarding sheering of sheep in Syria was repeated. The father found such an desire to be beyond the reasonable expectation from his daughter who studying homeopathy. Consequently, he conducted some inquiry and suspected the involvement of a larger organised group...”“Even if there was any such nexus or connection with a group, the law will take care itself”, intervened Chief Justice Misra.“The law has taken care under Article 226”, responded Mr. Diwan.“The second Habeas Corpus Petition was filed before the Kerala High Court on the ground that Hadiya may be compelled to leave the country; there was no question of any marriage at that point. The High Court took cognizance of the petition in the light of newspaper reports than as ...

Hadiya- We Can't Expand The Scope Of This Case Beyond The Question ‘Whether HC Can Nullify Marriage Between Two Consenting Adults’: SC

Mehal Jain

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