The Supreme Court on Monday observed that a High Court’s power to intervene in a habeas corpus petition and give custody of an adult woman to her father is restrained to circumstances when she is found to have been subjected to physical harm or torture or is psychologically depressed.
“A father cannot say I will have custody of my daughter after the lady becomes an adult,” Chief Justice of India Dipak Misra, leading a three-judge Bench, observed in the Hadiya case.
The Bench was considering the legality of the Kerala High Court’s May 24 decision to annul the marriage of 24-year-old Hadiya, who had converted to Islam and subsequently married Shafin Jahan, a Muslim. The High Court had also placed her in her father’s custody. The court’s decision was based on a habeas corpus petition filed by Ms. Hadiya’s father.
“She is an adult. A habeas corpus petition is filed in the Kerala High Court. In that case, her willingness has to be found to determine whether she was confined. She accepts the marriage. Can it be annulled in a habeas corpus petition,” Chief Justice Misra asked Additional Solicitor-General Maninder Singh.
Mr. Singh, who appears for the National Investigation Agency (NIA), said the Supreme Court had given the agency the “limited” role of investigating the case, and the girl’s father’s lawyers should reply to the question.
However, responding to the court’s question as a senior advocate, Mr. Singh said the High Court in its decision had referred to a Full Bench decision of the Kerala High Court which had held that a High Court can act as parent qua to adult children in certain circumstances.
Senior advocate Dushyant Dave and advocate Haris Beeran, appearing for Mr. Jahan, submitted that the High Court decision was “highly unsustainable as the lady appeared on her own before the High Court, said she converted to Islam on her own accord and wanted to live with her husband”.
“Children when they become adults are entitled to their views. Her personal liberties have been taken away by a judicial order. Can the power of the state and the judiciary be turned against a 24-year-old who has filed affidavit after affidavit stating her willingness to the marriage? She has married me [Mr. Jahan] and this is just an attempt to broaden the issue,” Mr. Dave submitted.
The Kerala government, in its turn, told the Supreme Court that a High Court could not, in a habeas corpus petition, annul the inter-religious marriage of an adult woman, if considered in a “purely legal” manner. However, the State government agreed that each case had to be seen according to its facts and circumstances. “If Your Lordships are asking me for a purely legal question, the High Court cannot annul such a marriage. That is if it is a completely legal question. But the facts and circumstances of the case should be taken note of,” senior advocate V. Giri, for Kerala, submitted.
The court posted the matter for hearing on Oct. 30.