SC asks if Kerala HC was justified in annulling Hadiya's marriage

Case posted for next hearing on 8 March

New Delhi: The Supreme Court Thursday asked if a roving inquiry could be ordered into the "issue of consent" between two adults who married at will and if the Kerala High Court order annulling the marriage of Hadiya, an alleged victim of 'love jihad', was justified.

The questions from a bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud came during the hearing of the Kerala conversion case.

"What troubles us is whether there can be a roving inquiry into the issue of consent between two adults who have agreed to marry," the bench said. Whether the high court was justified in nullifying the marriage is a pure question of law, it added.

"Marriage and investigation are two different things. As far as marriage is concerned, it does not warrant any investigation. Investigation has nothing to do with it. You can investigate any other thing," the court said.

Hadiya, the 25-year-old woman who is at the centre of an alleged love jihad controversy, had on Tuesday filed an affidavit before the top court claiming that she willingly converted to Islam and wants to live with her husband Shafin Jahan. The matter had come to fore when Jahan had challenged the Kerala High Court's order annulling his marriage with Hadiya and sending her to her parents' custody.

On November 27 last year, the apex court had freed Hadiya from her parents' custody and sent her to college to pursue her studies, even as she had pleaded that she should be allowed to go with her husband.

Senior advocate Shyam Divan, appearing for Hadiya's father, said it was a case of vulnerable adults and the high court was justified in nullifying the marriage by exercising its power under Article 226 of the Constitution.

"In this case, marriage was used as a pretext to keep it out of the court's jurisdiction," Divan said.

Hadiya had urged the court to set aside the judgement of the Kerala High Court that had annulled the marriage terming it an instance of 'love jihad'.

Although Divan pleaded with the bench to look into the NIA reports on the smuggling of people to terror groups like the ISIS, the bench said that such issues could be dealt by the government and reiterated that the subject being discussed here was whether a court can annul a marriage between consenting adults.

The bench observed that the government can regulate a person's right to travel abroad, but here the question is whether the court can annul a marriage or not.

In her affidavit filed on Tuesday, Hadiya described the circumstances under which she converted to Islam from Hinduism – she said that she had been kept under prolonged confinement without the freedom she is entitled to.

The affidavit was filed after the SC made her a respondent in the case.

"Even now I am under police surveillance. I most humbly pray that my entire liberty may kindly be restored to me," she said.

The bench posted the case for further hearing on March 8.

(With input from PTI)