NIA can''t probe marital status: Supreme Court on Kerala love jihad case

Satya Prakash

Tribune News Service

New Delhi, January 23

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"How can we say the marriage is not valid when she says she married someone on her own. She can choose independently. She is 24 years old,” said a three-judge Bench headed by Chief Justice of India Dipak Misra.

“Marriage has to be separate from criminal activity, otherwise we will be creating a bad precedent in law,” said the Bench, which also included Justice AM Khanwilkar and Justice DY Chandrachud. 

Whether the person she married was a good human being or a bad one cannot be probed. “NIA can investigate into all other aspects except marriage,” the Bench, which had in August last year ordered the National Investigation Agency to probe the matter, clarified.

On behalf of Akhila's father, advocate Madhavi Divan said marriage cannot be seen in isolation. 

“Please note that she was not married at the time of filing of petition (by her father) in the high court. The marriage was only a device to legitimise her illegal confinement.”

Akhila had converted to Islam, became Hadiya and married Shafin Jahan but their marriage was annulled by the Kerala High Court on May 25, 2017. 

A Division Bench of the High Court had termed Akhila's marriage with Jahan a “sham” and placed her in the protective custody of her parents.

Jahan had challenged the HC verdict in the top court.

The Bench, which had on November 27 sent her back to her Homeopathic Medical College in Tamil Nadu from her parents custody, made Hadiya a party to the case filed by her husband after senior counsel Kapil Sibal submitted on behalf of Jahan that she should be heard in the matter.

“She may have been brainwashed. But what can we do? Whether she made an independent choice or not only she can tell. If she comes to court and says she has married someone by her choice, that's the end of it,” said the CJI and fixed February 22 to further hearing.

“She is an adult. She appeared before us and said she is married. What can the court do? We can't get into the legitimacy of the marriage. Legitimacy of marriage can be questioned only by her or the man,” the Bench said.

The Bench said she was not under illegal detention. On behalf of the NIA, Additional Solicitor General Maninder Singh said, “Your Lordships must not give an impression that the NIA is working under pressure.”

The Supreme Court on November 27 sent Akhila alias Hadiya to Shivraj Homoeopathic Medical College in Salem, Tamil Nadu to resume internship/house surgeonship.

The Bench had passed the order after a two-and-a-half-hour hearing during which it had interacted with her through senior advocate V Giri who acted as an interpreter.

"I want freedom... release....I have been under mental stress for 11 months,” she had told the Bench.

CJI Misra had termed the case as “the most complex” he saw as a judge.