Above: Hadiya (right) and her husband Shafin Jahan. Photo: facebook

While the controversial Hadiya-Shafin Jahan ‘Love Jihad’ case began at the Supreme Court on Monday, the bench made a couple of critical observations.

The first was that the High Court’s power to intervene in a habeas corpus petition and then shift custody of an adult woman from her husband to her parents can only be done under special circumstances. These circumstances include situations where she has been subjected to physical torture or is psychologically depressed.

Chief Justice of India Dipak Misra had observed: “A father cannot say I will have custody of my daughter after the lady becomes an adult.”

While this was just an observation, this was diametrically opposite to the judgment of the Kerala High Court in which the court gave the 24-year-old Hadiya’s (she is 25 now) father custody of her daughter and also annulled her marriage.

The second observation by the top court was that Hadiya has, in more than one affidavit, accepted her marriage and has insisted that she has married him of her own free will.

The Chief Justice asked Additional Solicitor-General Maninder Singh: “She is an adult. A habeas corpus petition is filed in the Kerala High Court. In that case, her willingness has to be found to determine whether she was confined. She accepts the marriage. Can it be annulled in a habeas corpus petition?”

It was also interesting that the Supreme Court itself had asked the National investigation Agency (NIA) to look into the matter to find if there as a terror link involved. That has raised a few uncomfortable questions. At the Chief Justice’s question, Singh, who is representing the NIA, explained that the NIA’s role was “limited’ in this and that the girl’s father should reply to the question.

Jahan’s advocates, senior advocate Dushyant Dave and advocate Haris Beeran said that the decision of the high court was “highly unsustainable as the lady appeared on her own before the High Court, said she converted to Islam on her own accord and wanted to live with her husband”.

Dave asked, how can personal liberties of an adult be taken away by a court order?

The issue comes up for further hearing at the top court on October 30.

—India Legal Bureau