Shafin Jahan and Hadiya (file photo)
A Supreme Court bench hearing the case of Hadiya, the Kerala woman whose conversion and marriage had kicked up a storm, on Thursday repeated its query on whether a High Court can annul a marriage between two “consenting” adults.
Hadiya’s father K M Asokan, on whose petition her marriage was annulled, replied that the High Court was justified in doing so, given the peculiar circumstances of the case in which “marriage” was “used as a device and impediment to keep people out of the jurisdiction of the court”.
“There has to be compartmentalisation. As far as marriage is concerned, probably investigation can’t extend to it. But all other things, you can investigate… We are on whether High Court can annul the marriage,” a three-judge bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud observed.
Appearing for Hadiya’s father, senior advocate Shyam Divan told the bench that the High Court had the power under Article 226 of the Constitution and its decision was justified in view of the facts of the case.
Recounting the incidents, he said the marriage was annulled in May 2017 on a second petition filed by the father after Hadiya spoke about going to Syria for rearing sheep, adding that this happened in the wake of reports of 21 people leaving Kerala for Syria after being recruited by IS.
CJI Misra pointed out that the law could take care of any illegal acts and asked “what has that to do with marital status?”
Divan submitted that the HC “activating” its Article 226 jurisdiction was evidence of the law taking care of these. He added that people vanish once they leave the country after being recruited by the outfit.
Justice Chandrachud asked, “Can we say according to us the marriage was not for her best interest?” He added, “Whether it is in their best interest, it is for each person to decide.”
Divan said material had come before the High Court that there was an “enormous organisational structure” behind Akhila’s conversion to Hadiya. “A charade (is) being gone through here to prevent the High Court from exercising its power under Article 226,” he added.
The CJI asked, “Can there be a roving inquiry into a matrimonial relationship between two consenting adults to find out that there was no consent?”
Divan said there was no roving enquiry and the HC order was very specific. He urged the apex court to look at the NIA report, and said that High Courts could exercise jurisdiction to protect “vulnerable adults”.
The CJI pointed out that vulnerability was a subjective matter and law was against subjective approaches. The court will hear the matter on March 8.
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