The Supreme Court on Tuesday, January 23, observed that all the angles of love jihad in the Hadiya case can be probed by the National Investigation Agency (NIA) except her marriage — which was annulled by the Kerala High Court (HC) last year in May.
Hadiya's husband Shafin Jahan had appealed against the Kerala HC order in August 2017, in response to which the apex court on Tuesday has observed that the NIA cannot intervene in the marital status of Hadiya and Shafin.
A Supreme Court bench, consisting of Chief Justices of India (CJI) Dipak Misra, and Justices DY Chandrachud and AM Khanwilkar, observed that the marriage should be separated from any criminal conspiracy or criminal action.
The bench ruled that if marriage is probed, "it shall be a bad precedent in law." It observed: "'X' married 'Y' — that is it. We cannot get into if the choice is independent..."
SC bench scraps marriage annulment
CJI Misra, meanwhile, scrapped the marriage annulment order from May 2017 and observed: "That was an interim order. The heart of the matter is that the marriage cannot be nullified. So no investigation can be carried out into the marital status."
The bench also recalled that Hadiya, who has been at the centre of the love jihad controversy for over a year now, had said she was not forced to embrace Islam and that she married Shafin Jahan of her own will.
The court further said that it would examine on what grounds the Kerala HC had annulled the marriage of Hadiya to Shafin Jahan while the habeas corpus petition filed by Hadiya's father Asokan was being heard.
"She is a 24-year-old girl. If an adult says she is married out of her own free consent, how can one contest that marriage?" counsel Madhavi Diwan, who appeared in court on behalf of one of the respondents, was asked by the bench.
The counsel pointed out that the bench was looking at the case of a marriage that was conducted in isolation. Diwan was quoted by LiveLaw as saying: "Please note that she was not married at the time the [habeas corpus] petition was filed before the Kerala High Court."
She added: "The prayer at that time was that the girl was unwilling to return to her parents. The marriage is merely a device to legitimise her illegal confinement."
To this, the bench asked: "How can the writ of habeas corpus be issued in respect of an adult girl?"
It added: "We cannot question the legitimacy of Hadiya's choice.
"We cannot see how she has been brainwashed. We cannot interfere."
The bench then announced the next date for hearing the matter on February 22.
The apex court had last year on November 27 ruled that G Kannan, the Dean of the Homeopathy College where Hadiya studied, would be her guardian as she was allowed to continue her studies in Salem.
Meanwhile, a section of Twitteratti expressed concern over the fresh observations made by the Supreme Court in Hadiya's case.
A few, however, trolled the NIA and called it "Nikah Investigating Agency".
Here are a few such reactions:
There is a latent sarcasm in the SC observation anybody above 18 if they make a bad decision then according to Indian you are penalised under Indian IPC, if Hadiya marries a good or bad person is her problem— Sajith Sasidharan (@SajithSasidhar2) January 23, 2018
#Hadiya. Supreme Court direction today is a warning against the communally prejudiced functioning of NIA under BJP government. Let it stop behaving as, "Nikah (=Love Jihad) Investgation Agency". Let it compensate past misdeeds with fair future behaviour.— E M Abdul Rahiman (@EMAbdulRahiman1) January 23, 2018
There are more than 89 cases of Love Jihad in Kerala. Why NIA sticking with only #Hadiya case when she's not claiming as Victim. Yes, her Husband in touch with ISIS but Hadiya was practicing Islam before marriage. Better if NIA look other cases & where PFI linked with Love Jihad.— shyam ji kurele (@shyamjikurele) January 23, 2018