Our Correspondent / New Delhi
The Supreme Court today wondered if a high court could annul a marriage between two adults while hearing a writ petition under Article 226 of the Constitution.
The bench also wondered whether the 24-year-old woman could be forced to live in her father’s custody.
The apex court said that it will examine the issues in the course of the hearing of an application by Jahan seeking the recall of an earlier order by which the court had entrusted the investigation into the entire matter to the National Investigation Agency (NIA).
A Bench headed by Chief Justice of India Dipak Misra posed the question during hearing of a petition filed by Shafin Jahan (27), the man who married Akhila, a Hindu girl, after she converted to Islam and became Hadia.
The Bench also sought to know if Akhila, an adult, could be kept in her father’s custody against her will.
On a petition filed by Akhila’s father KM Ashokan, the Kerala High Court had annulled the marriage and handed over her custody to him. Jahan has challenged the HC’s verdict before the top court. Ashokan alleged it was a fraudulent conversion. Jahan is seeking recall of the order for an NIA probe.
When govt lawyer objected to it, CJI Justice Deepak Misra observed — it should been seen if high court under article 226 has the power to annul a marriage. That is the fundamental principle of law on which the argument should be based.
Earlier Kerala High Court had annulled the marriage Shafin Jahan and Akhila which gave birth to this controversy. Later SC had asked NIA to probe if there was any terror link with this marriage.
When SC was told that the father of the girl was also against the marriage, CJI said father cannot decide whether the girl is mature or not.
SC today asked Govt to file an affidavit on the demand of Shafin Jahan whether SC should recall it’s order on NIA probe.
However SC clarified that SC has the power to widen the scope of any case based on facts.
On behalf of Jahan, senior counsel Dushyant Dave questioned the court’s order for an NIA probe into the case. He said two senior BJP leaders were married to members of the minority community. “Will Your Lordships order an NIA probe into these marriages too?” Dave asked.
“An NIA probe into Hadiya’s marriage strikes at the very foundation of a multi-religious society,” said Dave.
On behalf of the NIA, Additional Solicitor General Tushar Mehta opposed it, saying it was the court which ordered the NIA probe and there was a pattern to conversions and such marriages in Kerala.
“Pattern or no pattern, the question is, can the high court annul the marriage by exercising its powers under Article 226 of the Constitution,” the bench said.
The Bench posted the matter for further hearing on October 9 after Mehta sought adjournment on the grounds that ASG Maninder Singh who had been appearing in the case was not available.
The top court had on August 16 ordered an NIA investigation into conversion of Akhila, a Hindu girl, to Islam and her subsequent marriage to Jahan, a Muslim man in Kerala after the NIA hinted that those involved in these conversions and marriages had links with SIMI, a banned organisation.
The NIA’s preliminary report submitted to the top court had hunted that it did not appear to be an isolated case and required further investigation.