New Delhi: The Supreme Court today (October 3) said it would examine the question whether the Kerala high court can exercise its power under writ jurisdiction to annul the marriage of a Muslim man with a Hindu woman who had converted to Islam before tying the nuptial knot.
The apex court was apparently not in agreement with the submission that the National Investigation Agency (NIA) was asked to probe whether there was any wider pattern, commonly referred to as ‘love jihad’, in the case and said that the question was can the high court annul the marriage between two adults.
“Pattern or no pattern, the question is, can the high court annul the marriage by exercising its powers under Article 226 of the constitution,” the bench comprising Chief Justice Dipak Misra and Justices A. M. Khanwilkar and D. Y. Chandrachud said and fixed the plea of the Kerala man for hearing on October 9.
The bench also said that a father cannot be seen dictating the personal life of a 24-year-old daughter.
At the outset, senior advocate Dushyant Dave, appearing for Shafin Jahan who has sought recall of the order asking the NIA to probe the case, started his arguments on a high pitch, which led the bench to ask him not to shout.
“This NIA probe shakes the very foundation of this multi-religious country. The order for NIA investigation was not in consonance of the law,” Dave said.
“Please do not shout,” the bench said, adding that his high pitch made it impossible for the bench to understand the submissions.
“I will shout,” Dave replied.
The senior lawyer questioned the apex court order asking the NIA to probe saying that neither the father, nor the state and neither the NIA was in appeal against the high court order. Rather, it was the man who has challenged the annulment of his marriage.
“State is not in appeal, father is not in appeal, NIA is not in appeal. Your lordships have gone beyond the jurisdiction and expanded the proceedings by ordering NIA probe,” he said.
“This investigation shakes the foundation of this multi-religious country. Two high functionaries of BJP have married members of minority community. Will your lordships order NIA probe into it? This order sends terrible signals all over the world,” he said.
The bench, which was apparently miffed with the way Dave addressed the court, said it would examine the validity of the high court order.
“No shouting. Instead of questioning the legal foundation, you are straying here and there,” it said.
Additional Solicitor General Tushar Mehta, appearing for NIA, opposed the submission of Dave and said the probe agency was not a party but was asked by the court to probe the matter to ascertain wider pattern, if any, to the case.
He said that the order asking NIA to probe was a consent order and senior advocate Kapil Sibal, the then counsel for Jahan, was present at the hearing.
Jahan had on September 20 approached the apex court seeking recall of its order directing the NIA to investigate the controversial case of conversion and marriage of a Hindu woman with him.
The Kerala high court had annulled the marriage terming it as an instance of ‘love jihad’, following which he had approached the apex court.
The top court had on August 16 directed the NIA to probe the incident under the supervision of retired apex court judge, Justice R. V. Raveendran.
Jahan, who had married a Hindu woman in last December, had moved the apex court after the Kerala high court annulled his marriage, saying it was an insult to the independence of women in the country.
The woman, a Hindu, had converted to Islam and later married Jahan. It was alleged that the woman was recruited by the ISIS’s mission in Syria and Jahan was only a stooge.
Ashokan K. M., the father of the woman, had alleged that there was a “well-oiled systematic mechanism” for conversion and Islamic radicalisation.
The high court, while declaring the marriage as “null and void”, had described the case as an instance of ‘love jihad’ and ordered the state police to conduct probe into such cases.