Supreme Court questions Kerala HC’s ‘love jihad’ order

NEW DELHI: A month and a half after ordering an NIA probe to be supervised by a retired SC judge into alleged 'love jihad' in Kerala, the apex court questioned the justification of the Kerala high court order annulling the marriage of Hindu girl Akhila aka Hadiya with Shafin Jahan.

In contrast to the August 18 proceedings before a bench headed by then CJI J S Khehar, a bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud questioned the father for moving court to seek annulment of his daughter's marriage. The girl had allegedly converted to Islam in 2013 and married Shafin in December 2016. The bench said, "She (Hadiya) is 24 years old. You (father) can't have control over her. On the consent of parties, we may appoint a custodian (for her). The father cannot say I will always have control over a 24 year-old daughter."

Since August 18, there have been two changes — Justice Khehar was succeeded by Justice Misra as CJI and Shafin's counsel Kapil Sibal and Indira Jaising were replaced by senior advocate Dushyant Dave. When additional solicitor general Tushar Mehta requested the bench for a few days' adjournment owing to the absence of ASG Maninder Singh, who had been handling the case, Dave lashed out at the SC's decision to order an NIA probe into the case. "We have a multi-cultural society.

Persons are free to choose whom to marry. The SC travelled much beyond the case in ordering NIA probe even when there was no appeal by the state government," Dave said. His voice was so loud that Justice Khanwilkar said, "You are so loud. We cannot even hear you properly." But Dave said, "I will be loud. Please vacate the August 18 order."

After criticising the SC for going beyond the case, Dave himself waded into political waters by asking, "There are two important Muslim BJP leaders who have married Hindu women. Should the SC order NIA probe into it?" This saw the CJI raise his voice too and tell Dave not to cross the boundary of logical arguments. "I expected logical arguments from a counsel of your stature. I am sorry to say your arguments are not logical," the CJI said.

He added two questions — "can there be an NIA probe and was the HC justified in annulling the marriage".

Surprised by the change of track, Mehta said, "The NIA has unearthed important material during the probe.

The present CJI (Justice Misra) is dealing with this case for the first time and does not have the advantage of going through this material. There is a pattern emerging from different cases (about love jihad)." Appearing for the girl's father, advocate Madhavi Divan said it was a fraud marriage.

But the court agreed to Mehta's request for a short adjournment and posted the case for October 9. It told Dave that there was no bar for the SC to expand its jurisdiction under the power conferred on it by Article 136 of the Constitution. It sought an opinion from senior advocate Fali S Nariman, who was present in the courtroom. Nariman was prompt to agree, "Under Article 136, there is nothing called SC can never expand its jurisdiction."