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

CJI says: “Is there any law by which a girl can never fall in love with a criminal? I am really very surprised that her father wants custody of a major.”

The Supreme Court bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud on Monday (October 30) made it clear that any decision on the Kerala ‘love jihad’ case will only be taken after Hadiya – the Hindu girl (then called Akhila) who had married a Muslim man Shafin Jahan, a marriage that had been annulled by the Kerala High Court – had expressed her opinion in open court.

While dismissing Akhila’s father Asokan’s plea for an in-camera hearing, the Chief Justice said Akhila will testify in open court at 3 pm on November 27. Earlier too, the court had said: “We will record her statement before giving any further directions.”

On Monday Additional Solicitor General Maninder Singh submitted that Akhila doesn’t want to be in the custody of her father. A new application had been filed in the high court.

He said that as far as marriage is concerned “it is her personal consent. Who can say there is no free consent? I know my Lakshman Rekha and I am following the law. But the previous order passed by this court said the court has the authority to set the time of investigation. She married a criminal.”

At that the CJI asked: “Is there any law by which a girl can never fall in love with a criminal? I am really very surprised that her father wants custody of a major (she is now 25, was 24 when she married) person who is married to another major person.”

The ASG said: “We have to decide it within two or three hearings and the high court must know the fact that she does not want to be with her father.”

This is a critical part that the court would want o pay heed to. In a recent video made by social activist Rahul Eashwar in Kochi, Hadiya had said that her father was ill-treating her and that there was a threat to her life.  She has been quoted as saying in the video: “You have to get me out. I am sure I will be killed tomorrow or the day after. My father is getting angry, I know. When I walk, he is pushing me and kicking me. If my head or any body part hits somewhere and I die…”

The bench said thereafter: “Unless we call the person we cannot decide if she can express herself or if she has given consent. Then we can take a call. Prima facie you have to satisfy our constitutional obligation of producing her in court.”

Senior advocate S Diwan reiterated the call for constitutional obligation. “When you talk about unity and diversity we are not going by impulse of society, but we will go by the law.”

The CJI agreed and directed Hadiya’s father to produce her on the next date of hearing, set for November 27.

—India Legal Bureau