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Kerala Love Jihad case: SC to examine High Court can nullify Hadiya’s marriage

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October 3, 2017(Agencies)

The Supreme Court on Tuesday wondered if a high court while hearing a writ petition under Article 226 can annul the marriage of an adult.

“The question is whether an HC on an Article 226 petition can annul the marriage,” Chief Justice of India Dipak Mishra asked while hearing a petition filed by a Kerala man — Shefin Jahan — whose marriage to a Hindu girl Akhila after she converted to Islam and took the name Hadiya was set aside by the High Court.

Jahan had approached the court seeking recall of its earlier order directing an NIA probe in the matter.

The petitioner had initially moved the court in August against the High Court order. But a bench headed by the then CJI Justice J S Khehar said it will also examine the contention raised by her father that she was allegedly converted fraudulently and ordered NIA investigation.

Appearing for Jahan on Tuesday, senior counsel Dushyant Dave vociferously contested the order for NIA probe saying “it struck at the very foundation of this multi-religious society” and was “sending terrible signals across the world”.

Dave’s charged tone invited the displeasure of the court with Justice A M Khanwilkar who was part of the three-judge bench observing “you are so loud that we can’t hear you”.

But a defiant Dave said he will be loud. He added, “two of the seniormost leaders in the BJP are married to members from minority community. Will your lordships order NIA enquiry against them”.

Additional Solicitor General (ASG) Tushar Mehta, who appeared in the court in place of ASG Maninder Singh representing the NIA .said all the objections being raised now by Dave had already been raised by senior counsel Kapil Sibal who had represented Jahan earlier and the same were considered by the court before ordering the NIA investigation.

“It was this court which asked us to probe the matter and we found a pattern (in such incidents of marriages in Kerala),”’ he said adding he will convince the court.

The CJI, meanwhile, observed that Hadiya’s father could not claim custody to her she was a grown up girl. “Either we will appoint loco parentis or we will send her somewhere safe. Father can’t insist on her custody”.

The court, however, took exception to Dave’s contention that it could not have travelled beyond the prayers made in the petition and ordered an NIA investigation saying the court had the power to do so depending on the facts of each case.

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