New Delhi: The Supreme Court on Tuesday said the National Investigation Agency (NIA) couldn’t probe the legitimacy of Hadiya’s marriage with Shafin Jahan as she has the right to decide about her choice.
A three-judge Bench of Chief Justice Dipak Misra and Justices A.M. Kanwilkar and D.Y. Chandrachud said the NIA probe on the terror angle will have no bearing on the marital status of Ms Hadiya.
The court made Hadiya a party in this case and sought her response about her marriage with Jahan.
The court made it clear that it cannot go into the legitimacy of the marriage, as it was either Hadiya or Jahan to take a call on this aspect. The court said “we make it clear that we are not concerned about the ongoing probe by the NIA into ‘love jihad’ cases. The only issue before us is legitimacy of the marriage, which cannot be challenged by third parties.”
The CJI said, “It needs no special emphasis to state that attaining the age of majority in an individual’s life has its own significance. She/he is entitled to make her/his choice.
The court cannot as long as the choice remains assume the role of parens patriae.
When Additional Solicitor General Maninder Singh, appearing for the NIA said that the August 16, 2017 order directing the NIA probe cannot be allowed to go waste, the bench reiterated: “Whether she made an independent choice or not, only she knows. She is 24-year-old. We cannot get into her thinking. You cannot probe marriage. Legitimacy of marriage can only be questioned either by the woman or the man. NIA can carry on with its probe but there should not be any kind of umbrella of this court.”
Appearing for the girl’s father Counsel Madhavi Divan argued that the marriage is merely a devise to legitimise her illegal confinement.
Justice Chandrachud orally observed, “You may be right that the marriage is solely a devise. But once Hadiya says that she is married, we cannot question the legitimacy of her choice. How can the writ of habeas corpus be issued in respect of an adult girl? Otherwise it will be a bad precedent in law.”
The CJI said, “Marriage should be free of any criminal conspiracy, criminal affability or criminal action. She is a 24 years old girl. She appeared before us as well as the High Court. She is not in illegal detention. If an adult says she is married out of her own free consent, how can one contest that marriage?”
Counsel submitted, “Your Lordships are looking at marriage in isolation. Please note that she was not married at the time the petition was filed. The prayer at that time was that the girl was unwilling to return to her parents. The marriage is merely a devise to legitimise her illegal confinement. My prayer is not regarding the marriage. We are not only concerned about the welfare but also about her intellectual insufficiency.” The CJI rejected her submission and said, “We cannot see how she has been brainwashed. We cannot interfere.”
On November 27, 2017, Hadiya walked free and she was admitted in a college in Salem, Tamil Nadu to pursue homoeopathy studies. whom she has married. The Bench posted the matter for further hearing on February 22 to hear Hadiya’s version.
