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CJI observes that test of a vulnerable adult was very subjective and that the law is “averse to subjective notions”

The Supreme Court while hearing the Hadiya case on Thursday (February 22) questioned the Kerala high court’s decision to annul the marriage of two consenting adults— Hadiya and her husband Shafin Jahan.

The bench headed by Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud  placed Hadiya’s affidavit on record praying to let her live with her husband and gave the respondents one week’s time to file a reply to it. Hadiya in her affidavit had submitted that she had embraced Islam as per her conscience and had married Jahan out of her “own free will”, so they be allowed to live together. She had also said that her father was under the influence of some people who were “playing behind him”.

The apex court bench asked whether the high court can exercise its jurisdiction under Article 226 and nullify the marriage between two consenting adults. CJI Dipak Misra also said that the marriage may be legal or void but the court is concerned only with the question of law—does the high court have the power to do so? During the hearing, Justice Misra said that the court cannot expand the scope of litigation in this case.

The court also asked if there can be an open inquiry into the marital status of two consenting adults. The court further said that the high court simply assumed that Hadiya is a vulnerable adult and decided to nullify her marriage. CJI observed that the test of a vulnerable adult was very subjective and that the law is “averse to subjective notions”.

However, Senior Advocate Shyam Divan, while appearing for Hadiya’s father KM Ashokan said that the Kerala high court was right in annulling the marriage of Hadiya and Jahan as it was not a normal marriage. To this, CJI Misra asked Divan: “If two consenting adults say that they are married, then can the court say otherwise?”

The Supreme Court asked whether the high court could have used its jurisdiction under Article 226 to annul a marriage in a habeas corpus petition. To this Divan replied that if a charade has been played to escape the court’s jurisdiction under Article 226, then the court must exercise its powers taking the larger picture into consideration.

Divan contended that the girl was a vulnerable adult under the influence of extremist organisations and that this case was an issue of mass trafficking. He, while referring about women being used for sexual purposes, told the court that he can place affidavits on record about people who have been recruited and then returned from threshold. Divan submitted that Hadiya’s case was not the only one and that he can present evidences that people have been part of such a system and marriage has been used as an instrument.

The matter has been listed for March 8.

 —India Legal Bureau

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