The Supreme Court on Thursday restored the marriage of Hadiya to Shafin Jahan and set aside a May 2017 order of the Kerala High Court that had annulled the union. Hadiya’s conversion from Hinduism to Islam and her subsequent marriage to a Muslim man had set off a political and legal maelstrom.p
“Marriage and intimacy of personal relationships are core of plurality in India,” the top court said. “We can’t let state or others makes inroads into this extremely personal space.”
The bench comprising Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud said they respected her individual choice and that she is free to pursue her future endeavours as per the law. The court said it had arrived at the decision after speaking to Hadiya who had admitted that she had willingly married Jahan.
The court, however, allowed the National Investigation Agency to continue their inquiry into the allegations of forced conversions by a “well-oiled network” in the state.
After annulling the marriage, the Kerala High Court had sent Hadiya back to her parents. But in August 2017, Jahan had moved the Supreme Court, which had observed that a woman’s consent as an adult was the most important aspect to consider in a case.
In the Supreme Court on Thursday, advocate Shyam Divan, who appeared for Hadiya’s father Ashokan, said a marriage can be annulled if it is against public or state interests. “Marriage fraud need not necessarily be affecting the parties [to the marriage] alone,” he said, according to Bar and Bench. “Law on ‘marriage fraud’ has evolved and expanded. Present case is one which warrants annulment of marriage by High Court.”
Advocate Kapil Sibal, who is representing Hadiya’s husband Jahan, said that the right to choose a partner is part of the Right to Life guaranteed under Article 21 of the Constitution. It is inappropriate to question the marital status of a couple in a habeas corpus petition, he said.
“No one has the locus to challenge marital status of two consenting adults,” Sibal told the bench. “The court’s status in the case is also that of third party’s. It cannot transgress into areas unconnected with the petition. Right to choose a partner is part of right to life under Article 21.”
After the order, Jahan said he had spoken to Hadiya and they were both very happy. “I am very happy... At last we got victory,” he told Scroll.in.
During the last hearing on February 22, Chief Justice of India Dipak Misra had asked if the court could interfere when two consenting adults say they married at will. “We cannot say this marriage is not in her best interest,” the Supreme Court bench had observed. “We cannot decide whether it is a right choice. We cannot annul a marriage on the ground that the person she has married is not the right person.”
Divan had then argued that the High Court’s decision was justified under Article 226, which empowers High Courts to issue orders to protect the fundamental rights of citizens. Divan had said there was material to prove that a “well-oiled apparatus” was working to convert “vulnerable adults”.
Divan had also urged the Supreme Court to hear what the National Investigation Agency has to say on its inquiry into the “huge trafficking case”. In January, the Supreme Court had said the NIA could investigate allegedly forced conversions, but no aspect of Hadiya’s marriage.
Hadiya has time and again said that she was not forced to convert to Islam and that she only wants to be with her husband. She had filed an affidavit in court on February 20, seeking permission to live with Jahan.
Her father Ashokan has claimed that Jahan was involved in terrorist activities, and that he planned to force Hadiya to join the Islamic State terrorist group. Jahan has dismissed the allegations. Sibal had earlier said that Ashokan, who was upset with Hadiya for converting to Islam and marrying Jahan, had told her that she would be trafficked to Syria.