Hadiya case: SC says it can’t question an adult’s choice of marriage

Hearing the Hadiya case, the Supreme Court Bench headed by Chief Justice Dipak Misra refused to question the legitimacy of an adult woman’s choice of marriage. The Bench observed that the National Investigation Agency (NIA) can probe all other aspects but not the marital status of Hadiya.

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.

A SC Bench of then Chief Justice J.S.Khehar and Justice D.Y.Chandrachud 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.

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

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.

Hearing the petition, the Chief Justice Dipak Misra headed Bench did bar the NIA from focusing into Hidiya’s marriage but asked the agency to continue its investigation. It also made Hadiya a party to the petition.   

 “She is a 24 years old. If an adult says she is married out of her own free consent, how one can contest that marriage?”

“Marriage should be free of any criminal conspiracy, criminal affability or criminal action. Otherwise it shall be a bad precedent in law. ‘X’ married ‘Y’- that is it. We cannot get into if the choice is independent,” observed the Bench directing the NIA to probe "all other aspects except her marriage".

The counsel for Hadiya’s father argued that Hadiya was not married at the time the petition was filed before the Kerala High Court.

“The marriage is merely a devise to legitimise her illegal confinement,” contended the counsel submitting that Hadiya was “brainwashed to get converted and subsequently get married”.   

But the Bench remarked: “Once Hadiya says that she is married, we cannot question the legitimacy of her choice”

“We cannot see how she has been brainwashed. We cannot interfere”, it said.

Kapil Sibal representing Jahan raised concerns regarding the NIA continuing its probe in the matter.

“How can the investigation now be allowed to proceed outside the umbrella of the court?” said Sibal.

 “The investigation should not commute beyond the scope of legitimacy and what the court has allowed,” he said pointing to the fact the SC Bench while ordering the NIA probe had requested retired Justice RV Raveendran to supervise it. But the former apex court judge subsequently had declined the request.

The NIA on the day apprised the court that it had made substantial progress in its probe but the Bench made it clear that Hadiya’s marriage was now out of ambit of its investigation.

 While Hadiya has repeatedly asserted her conversion to Islam and marriage to Jahan was voluntary, her parents have been alleging otherwise.

Posting the matter to be heard next on February 22, the Bench said it will examine the legality of Kerala HC move to annul Hadiya’s marriage.