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Three-bench Supreme Court bench headed by Chief Justice Dipak Misra and comprising Justice D Y Chandrachud and Justice A M Khanwilkar, observed on Tuesday that the National Investigation Agency (NIA) cannot probe on the validity of Hadiya’s marriage.
“She is a 24 years old girl. If an adult says she is married out of her own free consent, how can one contest that marriage?” the bench said, reported Live Law.
The counsel representing the respondents argued that Hadiya wasn’t married at the time the petition was filed in the Kerala High Court. She said that the marriage was a device to legitimize her illegal confinement after she ran away with husband Shafin Jahan and was unwilling to return home.
At this point, Justice Chandrachud remarked, “You may be right that the marriage is solely a device. But once Hadiya says that she is married, we cannot question the legitimacy of her choice. How can the writ of habeas corpus be issued in respect of an adult girl?”
CJI Misra said that the SC cannot get into the validity of the marriage if the choice is independent.
To the counsel’s argument that “when the girl is an adult, what is the jurisdiction of the High Court to grant the writ of habeas corpus if the girl is deemed to be mentally or intellectually insufficient?”, the CJI replied, “The girl has appeared before us as well as the High Court. She is not in illegal detention.”
The bench added toward the end of the hearing, “We cannot see how she has been brainwashed. We cannot interfere.”
The next hearing is scheduled on February 22.
Hadiya was born into a Hindu family and named Akhila. On December 2016, she married Shafin Jahan, a Muslim. Hadiya’s father claimed that Jahan is a criminal and his daughter was trapped by Islamist networks.
In January last year, Hadiya informed her parents that she had converted to Islam on her free will and her father moved the Kerala HC. On January 25, the HC dismissed the writ petition filed by her father, holding that the religious conversion was voluntary.
However, the case got more confusing when probe suggested that Hadiya had converted to Islam in 2015 under alleged influence of Muslim roommates, against her claims of conversion in 2013.
On the basis of police investigation, the Kerala HC in May this year, nullified the marriage between Hadiya and Jahan. It further handed over 24-year-old Hadiya’s custody to her parents and ordered a full-fledged investigation in the matter.
Jahan moved the Supreme Court against the HC’s judgement and requested the apex court to order Hadiya’s father to produce her in court. He said that the court “arbitrarily” annulled their marriage, giving it a flawed ‘love jihad’ angle. The apex court ordered a National Investigation Agency (NIA) probe into the issue.
On October 2017, the SC questioned the Kerala High Court’s ruling of ordering an adult woman’s father to keep her in custody. It also raised questions if the HC exceeded its reach by annulling the marriage between two consenting adults.
On November last year, the Supreme Court today that Hadiya be sent “at the earliest” to Salem Homeo College to complete her house surgency. The apex court also directed the Kerala government to make all arrangements and also directed the Dean of the college for her protection and hostel facilities.
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