Chief Justice of India Dipak Misra on Thursday asked whether the court could interfere when two consenting adults say they married at will. Misra made the statement while hearing the case of Hadiya, whose conversion from Hinduism to Islam and marriage to a Muslim man set off a political and legal maelstrom.
“We cannot say this marriage is not in her best interest,” the bench said, according to News18. “We cannot decide whether it is a right choice. We cannot annul a marriage on the ground that the person she has married is not the right person.”
The Supreme Court questioned whether a High Court can annul a marriage on the basis of a habeas corpus petition, Live Law reported.
Advocate Shyam Divan, who appeared for Hadiya’s father Ashokan, said Hadiya had told her father over telephone that she wants to go to Syria to rear sheep, The Hindu reported. “There may be fathers who receive such news with calm and fortitude, but this father was alarmed,” he said, claiming that Hadiya is a victim of an “enormous trafficking exercise”.
The Kerala High Court’s order annulling Hadiya’s marriage to Jahan in May 2017 was justified under Article 226, Divan said as there was material to prove that a “well-oiled apparatus” was working to convert “vulnerable adults”. Divan also urged the Supreme Court to hear what the National Investigation Agency has to say on its inquiry into the “huge trafficking case”, Bar and Bench reported.
In January, the Supreme Court had said the NIA could investigate allegedly forced conversions, but no aspect of Hadiya’s marriage.
Justice DY Chandrachud then observed that while the government could regulate a person’s right to travel abroad, the question here was still on whether a court can annul a marriage. The government has the power to stop trafficking on the basis of credible information, he pointed out. “But in personal law, we cannot annul marriages because she did not marry the right person,” he added.
The judge asked Divan whether a court could adjudicate on whether a marriage is genuine. “Can a court say she did not marry the right person?” the bench asked. “She came to us and told us that she married of her own accord.”
Advocate Kapil Sibal, who is representing Hadiya’s husband Shafin Jahan, dismissed the claim that Hadiya had said she wants to go to Syria to rear sheep. It was Hadiya’s father Ashokan, upset with her for converting to Islam and marrying Jahan, who told her that she would be trafficked to terrorist countries, Sibal said.
Hadiya had filed an affidavit in court on Tuesday, seeking permission to live with Jahan. Her father Ashokan had claimed that Jahan was involved in terrorist activities and Muslim organisations, and that he planned to force Hadiya to join the Islamic State group.
After annulling Hadiya and Jahan’s marriage, the Kerala High Court had sent her to her parents. But in August 2017, Jahan moved the Supreme Court, which then observed that a woman’s consent as an adult is the most important aspect to consider in a case.
Hadiya has reiterated that she was not forced to convert to Islam and only wanted to be with her husband. Jahan had also filed a complaint claiming some people were trying to convert her back to Hinduism.
The court adjourned the case for further hearing on March 8, ANI reported.
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