Prima facie, HC can’t annul a marriage: SC

The Supreme Court on Tuesday 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 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? ‘’Prima facie, we can say it can’t,” observed the bench.

The case pertains to a 25-year-old woman from Kerala, who married Shafin Jahan after converting to Islam. The high court nullified this marriage and ordered the state police to investigate such cases to look into a wider pattern of love jihad. The HC also handed over the custody of the adult woman to her father.

The apex court also remarked that a father cannot have control over a 25year-old woman and that such a claim can’t be made in respect of a major. “A father can’t say I will have control over her. After all she is a 24-25 year old lady,” observed the bench headed by Chief Justice Dipak Misra. Clarifying that the apex court will do whatever is right in law, the bench fixed the case for detailed hearing on October 9.

Jahan had challenged the annulment of his marriage in the Supreme Court and urged the Court to seek presence of the woman before it. The court, however, ordered a NIA probe into the matter on August 16 after the agency told the apex court that love jihad is for real. “There is a pattern to convert Hindu girls and get them married to Muslim men,” the NIA told the SC. Shafin Jahan has now sought the recall of the apex court’s earlier order by which the NIA was asked to probe the alleged 'love jihad' angle in the case.

The lady in question had first converted to Islam and then married Jahan. It was alleged that the woman was recruited by Islamic State's mission in Syria and Jahan was only a stooge.

Senior Advocate Dushyant Dave, appearing for Jahan, on Tuesday argued that the apex court should not have ordered an NIA investigation in the case and urged for an urgent hearing on the plea seeking recall of the order. ‘‘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 said.

Dave questioned the apex court order asking the NIA to probe the marriage 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.

Ashokan K M, the father of the woman, had alleged that there was a "well-oiled systematic mechanism" for conversion and Islamic radicalisation.