SC holds Hadiya's marriage with Shafin Jahan valid, Kerala HC verdict set aside

New Delhi: The Supreme Court Thursday set aside the Kerala High Court verdict that annulled the marriage of Hadiya with Shafin Jahan. The SC bench held that the marriage was valid and the court had no jurisdiction to cancel the marriage of the couple.

The case has been pending before the apex court since November when it had a preliminary hearing, after which, in the interim, allowed Hadiya to go free, instead of with her parents, and join her homeopathy college to complete her internship. The bench in its order also said that the NIA investigation could continue.

The SC order came at 2 pm after arguments on the issue of validity of the marriage of Hadiya with Shafin Jahan, by the three counsels for the three parties.

The Bench headed by Chief Justice Dipak Misra and comprising Justices AM Khanwilkar and DY Chandrachud heard the legal arguments of Senior Advocate Kapil Sibal appearing for Hadiya's husband Shafin Jahan, counsel for Hadiya's father Ashokan, Shyam Divan and Assistant Solicitor General Maninder Singh, who appeared for NIA.

After the arguments, punctuated by key observations of the Bench, the CJI informed that they will give a short order at 2 pm.

“We will pronounce a short order at 2 pm today. Detailed order will follow [later]”, said CJI Misra. The order was to decide the issue with respect to the validity of the marriage between Hadiya and petitioner, Shafin Jahan.

During the hearing today Kapil Sibal submitted that the right to choose a partner is part of Right to life under Article 21.

“It is inappropriate to question marital status in a Habeas Corpus petition. No one has the locus to challenge marital status of two consenting adults. The Court’s status in the case is also that of third party’s. It cannot transgress into areas unconnected with the petition. Right to choose a partner is part of right to life under Article 21,” said Sibal.

Sibal also cited a 2018 judgment of the Supreme Court in support of his case. .

Senior Advocate Shyam Divan, however, vehemently objected to Sibal’s arguments and contended that the High Court can exercise its jurisdiction under Article 226 in extraordinary cases such as these to annul a marriage between two consenting adults.

Divan drew on the concept of “marriage fraud” and the evolution of law relating to the same. He argued that it was not necessary that marriage fraud would affect the parties to the marriage alone; even if it against public or state interests, marriage can be annulled. Law on ‘marriage fraud’ had evolved and expanded. And the present case is one which warrants annulment of marriage by High Court, he said.

He also submitted that this was not a normal Habeas Corpus case.

“There are several extraordinary situations wherein two adults are freely consenting but it is to specifically defeat some object. In this case, the purpose was to defeat the jurisdiction of the High Court”, said Divan.

Additional Solicitor General Maninder Singh, appearing for National Investigation Agency, handed over a report of the probe to the Court. He requested the Court to peruse the report before taking any decision. Singh also listed various provisions under which the NIA planned to move against the accused.

Counsel Maninder Singh pleaded that there was something extremely important and that the bench take the report on record and peruse it before deciding the matter.

The Bench proceeded to take the report on record.

The Bench made observations regarding the plea by Divan and Maninder Singh and made it clear that the court will not interfere with the NIA probe, but also clarified that the NIA cannot touch the marriage.

“We are not touching your investigation. We are only saying that you cannot touch the marriage. Book them under whatever provisions you want to," said Justice Misra to Maninder Singh.

Justice Chandrachud also emphasized that the jurisdiction of High Court to go into a marriage between two consenting adults is very limited.

“Marriage is at the core of plurality in India. We cannot apply Wednesbury’s principles of reasonableness to marriage between consenting adults,” said Chandrachud.

Chandrachud did agree that in extraordinary circumstances the court might interfere, but clarified, “Let us say that a family in poverty marries off their daughter to unwelcome circumstances. That might be a case when the court could consider intervening. Chandrachud pointed out that the court has to be categorical as to which are the facts and circumstances in which the Court can intervene. "Only if the consent is obtained due to socio-economic circumstances or mental incapacity of the woman, the court can probably interfere as an exception.”

Chandrachud J. also remarked that public law cannot be allowed into personal sphere as this would give wide powers to the State to enter into an individual’s private sphere.

“He added that the marriage has not made any difference to the Habeas Corpus petition.

“Has the marriage made any difference to the decision of Hadiya on whether she wants to go back to her father? The marriage was irrelevant to the outcome of the Habeas Corpus petition,” he said.

It was also the Bench’s opinion that if the State wants to prevent the woman from being taken abroad, it can very well stop it, but that could not be a ground to stop a marriage with a person of her choice.