Courts cannot annul marriages between two consenting adults or resort to a “roving enquiry” on whether the married relationship between a man and woman is based on consent, the Supreme Court observed on Thursday.
The Bench led by Chief Justice Dipak Misra defined the limits of the court's jurisdiction in Hadiya case .
“Can a court say a marriage is not genuine or whether the relationship is not genuine? Can a court say she [Hadiya] did not marry the right person? She came to us and told us that she married of her own accord,” Justice D.Y. Chandrachud observed.
Ms. Hadiya, the 26-year-old Homeopathy student converted to Islam and subsequently married a Muslim man. The marriage was annulled by the Kerala High Court, which said it was “sham”. Her father, Asokan K.M., alleged that she was indoctrinated by a “well-oiled network” who is a front to recruit Indian citizens and traffick them abroad to strife-prone countries like Syria to work as “sex slaves”.
“She said on the telephone to her father that she wants to go to Syria to rear sheep. There may be fathers who receive such news with calm and fortitude, but this father was alarmed,” senior advocate Shyam Divan, for Mr. Asokan, addressed the Bench.
Mr. Divan said his daughter is a victim of an “enormous trafficking exercise”.
Justice Chandrachud countered that if there was trafficking of citizens involved, the government had the power to stop it on the basis of credible information. If citizens are travelling abroad to be part of a manifest illegality, then too, the government has the authority to stop them.
“But in personal law, we cannot annul marriages because she did not marry the right person ,” Justice Chandrachud told to Mr. Divan.
Chief Justice Misra said Ms. Hadiya's father may still view her as a child who was enticed or attracted by some kind of extraordinary situation. “But she is an adult,” Chief Justice Misra pointed out.
Chief Justice Misra said “What troubles us is there is a roving enquiry on the marriage of two consenting adults to find out whether was consent.”
The National Investigating Agency (NIA) had been probing the case and what they claim to be several other similar cases of “brainwashing”, radicalisation and indoctrination in Kerala. In the previous hearing, the court had told the NIA to stay away from prying into Ms. Hadiya's choice to marry Shafin Jahan.
But Mr. Divan said the Kerala High Court was “absolutely justified” in annulling the marriage, considering the particular circumstances of the case and the material before it that there was a network involved behind the conversion and marriage of Ms. Hadiya.
Countering Chief Justice Misra's observation that courts cannot intervene in a marriage between adults, Mr. Divan classified Ms. Hadiya as a “vulnerable adult” who still needs protection.
“This is a case exactly in which marriage is being used as a device to keep her [Hadiya] outside the reaches of the court,” Mr. Divan submitted.
In an intervention, senior advocate Kapil Sibal, for Mr. Shafin Jahan, said Mr. Divan was being “unfair” to the court. Mr. Sibal denied that Ms. Hadiya said she wanted to go to Syria for sheep farming. Instead, it was her father, upset by her conversion to Islam and subsequent marriage, who told her that she would be trafficked to terrorist countries.
The court scheduled the next hearing on March 8.