Hadiya case: SC once again questions HC’s power to annul marriage

Hearing the “Kerala Love Jihad case”, the Supreme Court on Thursday questioned if a High Court in exercise of its writ jurisdiction, can annul the marriage of a “vulnerable adult”.

The case concerns Kerala woman Akhila Ashokan’s conversion to Islam and her subsequent marriage to a Muslim man Shafin Jahan. She took the name of Hadiya after conversion.

Following a petition of habeas corpus by Hadiya’s father, Asokan KM, the Kerala High Court in May 2017 annulled her marriage, terming it a “sham” and directed her to return to her parents.

An apex court bench in August 2017 had ordered the NIA to investigate after it was contended that Hadiya case was not isolated and there could be more instances of “love jihad” in Kerala. Jahan subsequently approached the apex court appealing against the High Court order annulling his marriage. He also sought the withdrawal of the NIA probe into the marriage

 The questioned was posed by Chief Justice Dipak Misra headed bench after Asokan’s counsel made a submission of “vulnerable adults” while defending the High Court verdict.

 “The judgment was rendered by the High Court in exercise of the ‘parens patriae’ jurisdiction, not in its strict sense but in respect of a vulnerable adult,” said the counsel citing the doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf.

 “The parens patriae jurisdiction was applied by the HC considering the facts and circumstance of the case… there is an enormous trafficking exercise,” said the counsel claiming Hadiya’s marriage was just a “charade”.

 But the bench appeared unconvinced by the arguments. The court observed:

• “Can there be an open inquiry into the marital status of two consenting adults? It is not a case of rape, but marriage. The High Court simply assumes that Hadiya is a vulnerable adult and decides to nullify the marriage?”
• “The test of a vulnerable adult is very subjective.
• “The government has sufficient power to prevent an Indian citizen from travelling abroad. Can the courts say that a marriage is not in the best interest of a party or that a person whom a woman married is not good”.
• “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 court”.

Hadiya who has been made a party to the petition, on Tuesday filed an affidavit affirming her conversion to Islam and marriage to Jahan was voluntary and out of her own free will.

 She also sought restoration of her liberty as she continues to be under police surveillance, and urged the court to appoint Jahan as her guardian.

She also claimed that her father is under the influence of "certain section" of people, who "played and are still playing behind my father".

All those errant personnel, both official and non-official, who subjected or caused to subject me to the "horrendous torture and torment" are liable to be brought to justice, she said in the affidavit.

She also referred to the “mental and physical harassment” suffered by her during the wrongful confinement at the hostel as well as her parental home and the NIA treating her like a terrorist.