The Supreme Court on Thursday set aside a Kerala High Court order annulling the marriage of Hadiya to Shafin Jahan, whom she had married after converting to Islam.
In an order coinciding with the International Women’s Day, the Supreme Court recognised and upheld Ms. Hadiya's freedom “to pursue her future endeavours according to law”. This means Ms. Hadiya is free to leave her college hostel at Salem and join Mr. Jahan. A three-judge Bench of Chief Justice of India Dipak Misra, Justices A.M. Khanwilkar and D.Y. Chandrachud observed that the High Court “should not have annulled the marriage”.
‘Core of culture’
“Marriage and plurality are the fundamental core of our culture. Plurality in India should be zealously guarded,” Justice Chandrachud observed during an hour-long hearing.
“The moment you allow public law (law of relations between individuals and the State) to encroach into marriage, you are letting the state interfere in individual choices of a citizen,” Justice Chandrachud said.
Chief Justice Misra emphatically added that it is not just the state, but parents too cannot wield their influence against adults who marry a person of their own choice. It is not for the courts or the state or the parents to question a woman's choice of her husband.
Marriage still valid
Justice Chandrachud agreed that a “marriage between two consenting adults is still a valid marriage” even if a reasonable number of persons happen to disagree with the wedlock.
The Bench, in its short order, said Ms. Hadiya appeared before it on November 27 and “admitted her marriage” with Mr. Jahan.
This statement of Ms. Hadiya, made in open court, became the very basis for overthrowing the Kerala High Court order of May 24, 2017, which called the marriage a “sham” and referred to it as “love jihad”.
On November 24, 2017, Ms. Hadiya, a 26-year-old homoeopathy student from Kerala, was personally summoned to the Supreme
She was flown to the National Capital under police escort with her parents in tow. In the courtroom, she confirmed her marriage to Mr. Jahan and expressed her desire to keep both her faith and her liberty .
Ms. Hadiya's father Asokan had argued that a well-oiled network of human-trafficking was behind the marriage. The National Investigation Agency supported Mr. Asokan’s views that unseen actors were working behind the curtain to ensnare young people like Hadiya, convert them to Islam and thrust them into marriage. The National Investigation Agency (NIA) called such marriages as a “ruse” to escape police investigation. Senior advocate Shyam Divan, for Mr. Asokan, said such “marriages of convenience” disguise human trafficking. Such marriages are a fraud played on the public and an offence against the state.
To this, Justice Chandrachud reasoned that “when a girl of 16 marries a man of 70 or 80, the marriage borders on trafficking. Such a marriage may occur due to poverty or ignorance. Courts can indeed intervene in such marriages taking into consideration the inherent mental capacity of the woman or the socio-economic circumstances. But courts cannot intervene when two consenting adults decide to marry”.
However, the Supreme Court allowed the NIA to continue with its ongoing investigation into any criminality involved, but asked the agency to steer clear of Ms. Hadiya’s choice to marry Mr. Jahan. “You (NIA) and I are not here to scuttle the constitutional rights of an adult woman. You carry on the investigation, but not into the marriage. You can probe any aspect except the marriage,” Chief Justice Misra told NIA counsel and Additional Solicitor General Maninder Singh.