NIA can probe anything but not Hadiya’s marital status, SC on alleged Kerala ‘love Jihad’ case

New Delhi: The Supreme Court today observed that the National Investigation Agency (NIA) cannot get involved in the marital status of Hadiya alias Akhila as she is an adult. A three-judge SC bench headed by Chief Justice of India Dipak Misra brushed aside the agency’s objections and said, “We are not concerned with the NIA probe. You can probe anything, but not on marital status”.

The bench was responding to the NIA objection in which NIA said that top court had asked it to check if vulnerable women were being preyed on and recruited as terrorists, and they have made sufficient progress in this regard.

“It needs no special emphasis to state that attaining the age of majority in an individual’s life has its own significance. S/he is entitled to make her/his choice. The courts cannot, as long as the choice remains, assume the role of parens patriae (legal protector),” said the bench of Chief Justice Misra and Justices A M Khanwilkar and D Y Chandrachud.

A marriage has to be separated from any criminal action, aspect or conspiracy, “otherwise we will be creating bad precedent”, said the bench.

The marriage between Hadiya and Shafin Jahan was annulled by the Kerala high court last year, a move that was criticised widely by women’s rights activists and others for infringing on a woman’s personal rights. The high court had also ordered Hadiya to remain in the custody of her parents. Jahan had appealed this decision in the Supreme Court.

The lawyer representing Hadiya’s father, who had insisted from the beginning that the marriage is a case of ‘love jihad‘ even though Hadiya converted to Islam before she met Jahan, and demanded that the circumstances leading to the marriage needed to be investigated.

The Supreme Court also said that it is not within the courts’ jurisdiction to decide whether or not a grown woman should live with her parents. “When the girl says I don’t want to go with father, how can the court compel her? She is an adult, she appeared and made a statement,” said the bench.

The court also accepted Jahan’s lawyer Kapil Sibal’s request to make Hadiya a party to the proceedings, and said that the matter will next be heard on February 22.

In November 2017, the Supreme Court had ‘allowed’ Hadiya to go back to college and finish her homeopathic study. The bench directed the college and the university to re-admit Hadiya and grant her hostel facilities.

During the course of the hearing then, Hadiya had said that she wanted to live with her husband and that she had married Jahan of her own free will. She was produced in the court after the bench had ordered her father to bring her, so that they could ascertain her mental health.