Day 8 Arguments

February 22nd 2018

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

In the last hearing on January 23rd, 2018, the Court had added Hadiya as a party to the matter. She has submitted an affidavit to the Court making her averments. It is surprising that it took court six months to add Hadiya as an intervenor where the case revolved around her choice of religion and marriage.

Today, the hearings began with CJI Dipak Misra making it clear that Hadiya had made her wishes known and expressed her views in open court. The Court would not therefore concern itself with the relationship between two adults. He asserted the need for compartmentalisation between marriage and the investigation by the NIA.

Mr Shyam Divan representing Hadiya’s father Mr Ashokan argued that Kerala High Court was right in using its powers under Article 226 to annul the marriage. The CJI wondered if courts could interfere if two consenting adults wanted to marry. Mr Divan said that a court could certainly interfere a) under Article 226, b) considering the special facts and circumstances of the matter. Mr Sibal strongly objected to the insinuation of ISIS terror links in this matter. However, Mr Divan persisted in making references to the issue of terror groups aiming to recruit ‘the next generation’ of terrorists. He submitted that Hadiya’s father, in his conversations with her, heard her talk about wanting to go overseas ‘to rear sheep’. This statement disturbed her father, and on further investigation, he found that there existed a well-organised scheme of recruitment by ISIS. Mr Divan further argued that the High Court’s directed further for investigation was in light of this news and which had be given due weightage by the Supreme Court, as it was a crucial aspect of this case. He submitted that the power of the Court was being denuded by introducing the angle of marriage.

Justice D.Y. Chandrachud inquired to the extent to which courts could look into the rights and wrongs in a personal law matter between two adults such as marriage. He emphasised that if the government had information that citizens were being recruited for terrorist activities and outfits then it had sufficient power to stop them, by prohibiting them from travelling abroad, for instance. Chandrachud J indicated that it might be a slippery slope for courts to look into marriage between two consenting adults. Courts could not annul any marriage on such assumptions, just as it could not stand in the Government’s way of dealing with the issue.

Mr Divan submitted that the High Court had exercised its parens patriae (legal protector of a citizen in case the citizen was unable to protect himself) jurisdiction in the interest of a “vulnerable adult” like Hadiya. He pointed out that the High court had enough material evidence and submissions, including Hadiya’s statements, that an organisational apparatus to recruit persons for terror activities was in place. He urged the bench to realise that this marriage was being used to keep these issues outside the purview of the court. Justice Chandrachud enquired whether the factum of marriage disempowered the government from investigating the issue? Mr Divan replied that he was arguing about the Court’s powers and not the government’s. The CJI asked if courts could apply the parens patriae principle to the marital apparatus to which Mr Divan vehemently submitted that courts could, especially in the present case. He flagged the notion of Hadiya falling under the category of a “vulnerable adult”. The CJI expressed alarm at this submission stating that the test for “vulnerable adult” was very subjective. Mr Sibal also expressed his objection to this line of reasoning by Mr Divan.

At this point, the counsel representing Mr Rahul Easwar submitted that Hadiya’s affidavit, in Paragraph 25, makes serious allegations against him and prayed that these statements be expunged. The bench allowed the expungement.

The matter is posted to be heard on 8^th March 2018.