Writ Petition Summary

Background and Issue

On December 19th 2016, Hadiya married Shafin Jahan after converting from Hinduism to Islam. Her parents did not approve of the marriage and filed a petition at the Kerala High Court on January 13th 2016 claiming that she was illegally confined in the Sathyasarani College Hostel. The High Court (HC) disposed of the case on January 25th 2016 and held that Hadiya was exercising her own free will.

Hadiya’s parents filed a second petition at the Kerala HC on August 16th 2016. On May 24th 2017 the HC held that Hadiya had been taken against her will. The HC annulled the marriage between Hadiya and her husband. The Order stated that the marriage was a ‘sham’ and that the decision of marriage could only be taken with the active involvement of the wife’s parents.

So, Shafin Jahan filed a special leave petition at the Supreme Court in July 2017, challenging the Kerala High Court’s order annulling the marriage. The Supreme Court will decide whether the High Court has the power to annul the marriage of an adult in a Writ Petition.

 

What Does the Petitioner Seek?

The petitioner, Shafin Jahan, requests the Court to set aside the Kerala High Court’s order and allow Hadiya to live where she wants and marry who she wants to.

Until the Court makes a decision, the petitioner also seeks interim relief. He requests that  the Supreme Court (SC) stay the order passed by the Kerala High Court in 2017. A stay would suspend the HC order, and restore Shafin Jahan’s  marriage with Hadiya.

Grounds

Kerala High Court Already Ruled on the Issue in 2016 (Res Judicata)

The petitioner argues that Hadiya’s parents filed the writ petition even though the Kerala High Court had already disposed of the matter. On January 25th 2016, a two-judge Bench of the High Court had held that Hadiya was not under illegal confinement. In this previous order, the High Court held that Hadiya had not been ‘coerced’ into accepting the religion of Islam. As she was a major, the Court stated that she was free to make her own decisions.

So, the petitioner argues that the matter has already been decided by a competent Court, and could not be heard again between the same parties. He argues that the second order on May 24th 2017, in which the Kerala High Court annulled the marriage should be set aside.

The petitioner relied on the case of Ghulam Sarwar v Union of India (1966). There, the Supreme Court held that two-judge Benches speak for the entire court. This meant that a two-judge Bench cannot set aside the order of another two-judge Bench of the same HC.

 

Hadiya Has Agency and Independence

The HC in 2017 had stated that the motivation behind the marriage was to traffic Hadiya outside the country. It declared that she was weak, and vulnerable to exploitation despite being an ‘able adult’. The petitioner argues that the Order ignores Hadiya’s independence and agency which violates her fundamental rights.

The petitioner contended that requiring a woman’s father’s consent for marriage disregarded her individual autonomy. The petitioner referred to the case of Lata Singh v State of Uttar Pradesh (2006) where the SC held that the lack of consent from the bride’s father was not a ground to nullify marriage. The petitioner also stated that this would be against Muslim personal law, as stated in judgments such as Adam v Mummad (1990).

The petitioner also claims that Hadiya’s parents have detained her against her will. This has prevented her from approaching the Court and also violates her fundamental rights.

 

The Marriage Satisfies Muslim Law

The petitioner argues that the marriage has satisfied all requirements under Muslim law. It was done “…in a normal course of events…[with] no prior motive or malice”. All the rites required by Muslim law had been performed.

The petitioner also claims that Hadiya converted to Islam of her own free will, so comparing the case to ‘love jihad’ was an error. In fact, Hadiya herself had joined the matrimonial website where she met her husband. So, the petitioner argues that there was no legal basis in Muslim law to annul the marriage between the two parties.