Final Hearing Of Hadiya Case: Who Said What? [Courtroom Exchange]

The final hearing in the Hadiya case on Thursday commenced with senior counsel Kapil Sibal, appearing on behalf of Shafin Jahan, the petitioner, raising two issues: “One, can in a habeas corpus petition, the high court suo motu proceed to nullify a marriage? And second, it a settled position of law that no third party can move any proceeding in any court in respect of marriage between two consenting adults”.“The right to choose one’s partner is incorporated in the right to life and liberty under Article 21 of the Constitution of India... A habeas corpus petition is unique in its object of challenging illegal detention; it is inappropriate to question marital status and consent therein... In case of two consenting adults, the marital status cannot be called in to question by anyone except the parties to the marriage… the status of the court is also that of a third party... no investigation can be lawfully proceeded into the marital status, on account of the settled position that no FIR or private complaint pertaining to a marriage may be entertained... To question the mental capacity of an individual is a violation of their fundamental right to privacy and dignity... the mental capacity of the woman in question has already been established by her interaction in the Kerala High Court as well as the Supreme Court,” Sibal continued advancing his submissions.Thereupon, he referred the bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar to the recent judgment of the apex court in Soni Gerry v. Gerry Douglas, wherein the court observed that the court cannot assume the role of a super-guardian where an adult unequivocally expresses their opinionThereupon, senior counsel Shyam Diwan, appearing for Hadiya’s father Ashokan advanced, “As to the two questions that whether the High Court, acting under Article 226, could annul a marriage, and whether, in the facts and circumstances of the present case, the High Court was justified in nullifying the marriage, I would like to submit that under Article 226, the High Court has inherent jurisdiction to annul a marriage in an appropriate case”.“If it is a case where the solemnization of marriage is carried out in the background of poverty or illiteracy of one of the parties, either man or woman, the court could be justified in its intervention. But when two freely consenting adults have decided to get married, can the court go into the rightness or correctness of the partner or the justness of marriage,” inquired Justice Chandrachud.“There may be instances where, on account of socio-economic factors of one of the parties or the (proved) fact of mental incapacity, the party cannot be entitled to assert their right. But what are the facts and circumstances where the court may otherwise make this exception on the ground of either mental incapacity or that the consent was obtained by fraud,” asked the judge.“I believe we agree that the oversight of the High Court under Article 226 cannot be completely shut out in appropriate cases...the traditional doctrine of marriage fraud recognises the events when there is either no free consent or an individual is incapable of giving consent. And now the law has evolved to say that a particular marriage is a fraud...”, Divan sought to respond.“But can we allow the public law or even the State to interfere,” asked Justice Chandrachud.“It is already happening”, replied Divan.“In a habeas corpus petition, once it has been established that there is no wrongful confinement, the case ends,” remarked the Chief Justice.“Perhaps not...in the present case, the concept of marriage between consenting adults is being employed to defeat the law and to prevent the exercise of its jurisdiction by the High Court so as to give effect to the act of trafficking...there is a well-oiled machinery that is orchestrating the entire act...”, replied Divan.Cutting him across, the Chief Justice observed, “To tell you candidly, this argument does not impress us...we have interacted with the girl...the court cannot get into consensual obsession...”“But in such extraordinary cases, the High Court has a plenary jurisdiction...,” began Divan.“In respect of marriage and intimacy, we cannot apply the Wednesbury doctrine of reasonableness,” added Justice Chandrachud.Moving on to question ASG Maninder Singh, appearing for the NIA, the Chief Justice inquired, “Have you investigated into any offence against either the man or the woman?”Vehemently emphasising that the investigation may not extend to the question of marital status, the Chief Justice remarked, “‘X’ obtains a decree of divorce against ‘Y’. One year later, they resolve their differences and again enter into marriage. What can the court do?”“But it is necessary that the consent be direct and free,” the ASG sought to submit.“We cannot go into the neurological aspect of consent. The purpose of Article 226 is to keep a right alive and not to strangle a right. Let us assume the extreme...

Final Hearing Of Hadiya Case: Who Said What? [Courtroom Exchange]

Mehal Jain

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