The Supreme Court on Monday observed that a high court’s power to intervene in a habeas corpus petition and give custody of an adult woman to her father is restrained to circumstances when she is found to have been subjected to physical harm or torture or is psychologically depressed.
“A father cannot say I will have custody of my daughter after the lady becomes an adult,” Chief Justice of India Dipak Misra,leading a three-judge Bench, observed in the Hadiya case.
The Bench was considering the legality of Kerala High Court's May 24 decision to annul the marriage of 24-year-old Hadiya, who had converted to Islam and subsequently married a Muslim man, Shafin Jahan. The high court had also placed her in her father’s custody. The high court’s decision was based on a habeas corpus petition filed by Hadiya’s father.
“She is an adult. A habeas corpus petition is filed in the Kerala High Court. In that case, her willingness has to be found to determine whether she was confined. She accepts the marriage. Can it be annulled in a habeas corpus petition?” Chief Justice Misra asked Additional Solicitor General Maninder Singh.
Mr. Singh, who appears for NIA, said the agency was given the “limited” role of probing the case by the Supreme Court, and the girl’s father’s lawyers should reply to the question. However, responding to the court’s question as a senior advocate, Mr. Singh said the high court in its decision had referred to a Full Bench decision of the Kerala High Court which had held that a high court can act as parent qua adult children in certain circumstances.
Senior advocate Dushyant Dave and advocate Haris Beeran, appearing for Jahan, submitted that the high court decision was “highly unsustainable as the lady appeared on her own before the high court, said she converted to Islam on her own accord and wanted to live with her husband”.
“Children when they become adults are entitled to their views. Her personal liberties have been taken away by a judicial order. Can the power of the State and the judiciary be turned against a 24-year-old who has filed affidavit after affidavit stating her willingness to the marriage? She has married me and this is just an attempt to broaden the issue,” Mr. Dave submitted.
The Kerala government, in its turn, told the Supreme Court that a high court cannot, in a habeas corpus petition, annul the inter-religious marriage of an adult woman, who converted to Islam, with a Muslim man, if considered in a “purely legal” manner.
However, the State government agreed that each case has to be seen according to its facts and circumstances.
“If Your Lordships are asking me for a purely legal question, the High Court cannot annul such a marriage. That is if it is a completely legal question. But facts and circumstances of the case should be taken note of,” senior advocate V. Giri, for Kerala, submitted.
The Pinarayi Vijayan government in Kerala had in an affidavit filed before the Supreme Court rejected the claims made by the Centre's National Investigation Agency (NIA) that the Hadiya case was a part of a "pattern" of religious conversions and radicalisation happening in Kerala.
The court posted the matter for hearing on October 30.