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The Supreme Court will pronounce the operative part of judgment in Hadiya case at 2 pm today.
The Bench headed by Chief Justice Dipak Misra and comprising Justices AM Khanwilkar and DY Chandrachud told the same to the parties today after hearing Senior Counsel Kapil Sibal and Shyam Divan and ASG Maninder Singh.
“We will pronounce a short order at 2 pm today. Detailed order will follow [later]”, said CJI Misra.
The order is likely to decide the issue with respect to the validity of the marriage between Hadiya and petitioner, Shafin Jahan.
During the hearing today Senior Advocate Kapil Sibal submitted that the right to choose a partner is part of Right to life under Article 21.
“It is inappropriate to question marital status in a Habeas Corpus petition. No one has the locus to challenge marital status of two consenting adults. The Court’s status in the case is also that of third party’s. It cannot transgress into areas unconnected with the petition. Right to choose a partner is part of right to life under Article 21“, said Sibal.
Sibal also cited a 2018 judgment of the Supreme Court to buttress his case.
Senior Advocate Shyam Divan, however vehemently objected to Sibal’s arguments and contended that the High Court can exercise its jurisdiction under Article 226 in extraordinary cases such as these to annul a marriage between two consenting adults.
Divan relied on the concept of “marriage fraud” and the evolution of law relating to the same.
“Marriage fraud need not necessarily be affecting the parties (to the marriage) alone. Even if it is against public or State interests, marriage can be annulled. Law on ‘marriage fraud’ had evolved and expanded. Present case is one which warrants annulment of marriage by High Court”, he said.
He also submitted that this was not a normal Habeas Corpus case.
“There are several extraordinary situations wherein two adults are freely consenting but it is to specifically defeat some object. In this case, the purpose was to defeat the jurisdiction of the High Court”, said Divan.
Additional Solicitor General Maninder Singh, appearing for National Investigation Agency, handed over a report of the probe to the Court. He requested the Court to peruse the report before taking any decision. Singh also listed various provisions under which the NIA planned to move against the accused.
“There is something extremely important. Your Lordships should take the report on record and peruse it before deciding the matter”, Singh said.
The Bench proceeded to take the report on record.
The submissions by Divan and Maninder Singh elicited responses from the Bench.
With regard to the NIA probe, the Court made it clear that it will not interfere with the same.
“We are not touching your investigation. We are only saying that you cannot touch the marriage. Book them under whatever provisions you want to”, said Justice Misra to Maninder Singh.
Justice Chandrachud was also very vocal stating that the jurisdiction of High Court to go into a marriage between two consenting adults is very limited.
“Marriage is at the core of plurality in India. We cannot apply Wednesbury’s principles of reasonableness to marriage between consenting adults”, said Chandrachud.
Chandrachud also cited some extraordinary circumstances which might warrant interference by the court.
“Let us say that a family in poverty marries off their daughter to unwelcome circumstances. That might be a case when the court could consider intervening.
We have to be categoric as to which are the facts and circumstances in which the Court can intervene. Only if the consent is obtained due to socio-economic circumstances or mental incapacity of the woman, the court can probably interfere as an exception.”
Interestingly, Chandrachud J. also remarked that public law cannot be allowed into personal sphere as this would give wide powers to the State to enter into an individual’s private sphere.
“The moment we allow public law into personal sphere, the State will be allowed to enter into […].”
Further, Chandrachud J. also stated that the marriage has not made any difference to the Habeas Corpus petition.
“Has the marriage made any difference to the decision of Hadiya on whether she wants to go back to her father. The marriage was irrelevant to the outcome of the Habeas Corpus petition”, he said.
It was also the Bench’s opinion that if the State wants to prevent the woman from being taken abroad, it can very well stop it.
“But that cannot be a ground that she cannot marry a person of her choice”, remarked the Bench.
It then reserved its verdict. The operative parr of the judgment will be pronounced at 2 pm.