Hadiya Case: We Can't Question The Legitimacy Of An Adult Woman's Choice Of Marriage, Observes SC [Read Order]
The Supreme Court bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar on Tuesday, in the course of the hearing of the Special Leave Petition in ‘Shafin Jahan v. UOI’, observed that the investigation by the National Investigation Agency (NIA) will not have any bearing in Hadiya’s marital status.
“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?”
“Your Lordships are looking at marriage in isolation. Please note that she was not married at the time the petition was filed before the Kerala High Court. The prayer at that time was that the girl was unwilling to return to her parents. The marriage is merely a devise to legitimise her illegal confinement”, submitted the counsel Madhavi Diwan, appearing on behalf of one of the respondents.
At this point, Justice Chandrachud remarked, “You may be right that the marriage is solely a devise. 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?”
The counsel began to respond-“There are two categories of cases- One, where two people meet and agree to get married. We are not on that...”
"In this one of a kind case, the court is required to examine the extent of the habeas corpus jurisdiction where an adult does not have any known physical or mental incapacity. Here marriage was a device to legitimise her confinement with the conversion institution. The court cannot shut it’s eyes to a highly sophisticated network at play where marriage was only a last step in a much larger modus operandi"
Chief Justice Misra, cutting through the submission, said, “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”.
“My prayer is not regarding the marriage. We are not only concerned about the welfare. 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?”, argued Madhavi Divan.
“The girl has appeared before us as well as the High Court. She is not in illegal detention”, concluded the Chief Justice.
Even towards the end of the hearing, the counsel urged the court to see the sequence of events leading to the marriage. “We cannot see how she has been brainwashed. We cannot interfere”, stated the bench.
Senior Counsel Kapil Sibal, appearing on behalf of the present petitioner, raised concerns regarding the investigation being carried out by the NIA- “On August 16, 2017, this Court had directed that the investigation to be conducted under the supervision of the court. How can the investigation now be allowed to proceed outside the umbrella of the court?”
“Your Lordship must not give pressure...the NIA is not doing anything with force”, submitted Additional Solicitor General (ASG) Maninder Singh.
Referring to the order dated August 16, 2017, Chief Justice Dipak Misra remarked, “That was an interim order. The heart of the matter is that the marriage cannot be nullified. So no investigation can be carried out into the marital status”.
“The investigation should not commute beyond the scope of legitimacy and what the court has allowed”, added Mr. Sibal.
In addition, applications for intervention were made by other respondents- “My daughter’s life is at stake. The issue in the application may be different so please hear the matter separately”, submitted the lawyer for Hadiya's mother.
“The victim has escaped the fate of becoming a suicide bomber”, advanced another advocate. To this, the bench remarked, “That matter is for the NIA to investigate”.
The matter is scheduled for further hearing on February 22.
Read the Order Here