Day 9 Arguments

March 8th 2018

Arguments resumed, in this case before the 3 judge bench comprising Chief Justice Dipak Misra, and Justices D.Y. Chandrachud and A.M. Khanwilkar to decide if the High Court has the authority to annul the marriage of an adult on suspicion of ‘indoctrination’.

Mr Kapil Sibal, appearing for Mr Shafin Jahan put forward a brief argument that a habeas corpus was only meant for wrongful confinement and annulment of marriage was not within the powers of a writ court.

Mr Shyam Divan, appearing for Hadiya’s father Mr K. M. Ashokan argued that the High Court had plenary extraordinary jurisdiction under Article 226 and could do ‘complete justice’ as per the facts and circumstances of the case. He said that this marriage was a device to scuttle the proceedings of the court and interfere with the fair administration of justice. It was a ploy to take Akhila (Hadiya), a ‘vulnerable adult’, out of the jurisdiction of the High Court that was practicing its parens patriae jurisdiction.

Justice Chandrachud enquired if the court could annul a marriage which was an intimate personal matter between two consenting adults? Mr Divan replied in the affirmative. ‘Marriage Fraud’ doctrine had been well recognised. It said the state could intervene in those marriages that had a ‘purpose’ and were ‘marriages of convenience’. As this marriage was a ploy to take her out of the protective jurisdiction of the High Court order and traffic her out of the country, the court could intervene.

The Chief Justice remarked that the court was not concerned with the criminal aspect and that the NIA could inspect the issue separately, but was concerned with whether the court had the power to annul the marriage. There was an exchange between the bench and Mr Shyam Divan, where he emphasized the special circumstances of the case. Mr Divan enquired if the court would not interfere even if the marriage was a ruse to derail the administration of justice? He added that Hadiya had repeatedly sought the guardianship of a stranger, Ms Sainaba (Respondent 7) and now Mr Shafin, her husband. Justice Chandrachud wished to clarify if Hadiya had asked for guardianship of Ms Sainaba. Mr Divan replied in the affirmative and added that Ms Sainaba had been involved “in many such cases” where she first acted as a guardian and “then gets the girl married off.”

The Chief Justice intervened to say that a habeas corpus petition only involved getting the person to court and asking his/her choice. In this regard, Hadiya had affirmed her willingness to be with her husband.

Mr Divan persisted that this was an extraordinary case and that extraordinary jurisdiction should be exercised by the Supreme Court. He reiterated that the facts of this case were unique where Ms.Sainaba and her “illegal conversion centre” i.e. Sathya Sarani, and Shafin Jahan were Popular Front of India (PFI) activists who were part of a “well-oiled machinery” aimed at radicalisation. He alleged that when they saw that Akhila was being sent to a hostel to complete her studies, they got her married immediately and that she had kept her marriage a secret even when the High Court was hearing the matter. Mr Divan also charged Mr Shafin with talking to an ISIS operative about sending an ISIS recruit and presented compilations showing the entire organisational apparatus.

Towards the end, Mr Maninder Singh, ASG, appearing for the NIA made a brief intervention on the limited point of NIA investigation. He urged the court to look into the NIA findings before pronouncing the judgment, as the investigation had been done on the orders of the court. He said that two things were clear from the investigations – First, in many cases such as this, Ms Sainaba had intervened to say that the girl was in her custody. Second, she got the girl married in order to keep the matter out of the court’s jurisdiction. Mr Singh continued that this marriage was also a ploy to obstruct the proceedings and the court should see through this design.

The Chief Justice observed that the court would not investigate the marriage but the investigations into criminal antecedents could go on. The court passed an operative order today, a detailed judgment is to follow.. It set aside the Kerala High Court judgment which had annulled Hadiya’s marriage with Mr Shafin Jahan. The bench held that “Hadiya alias Akhila Ashokan was at liberty to pursue her future endeavours according to law”. However, the bench clarified that the investigations by the NIA with respect of criminality could continue in accordance with law.

 

(With contributions from Mr Ayush Puri)