Mr. Dushyant Dave appearing for Hadiya’s husband Shafin Jahan argued that the court had overstepped the limits of jurisdiction by ordering an NIA probe into the issue, for doing so was contrary to the very spirit of a multi-religious society. Mr. Dave further cited examples of senior-level BJP functionaries who being Muslims had married Hindus, questioning whether such cases would also be termed “love jihad” mandating an NIA probe into the matter.
The argument, however, was not well received by the Bench which asked Mr. Dave to limit his submissions to the law and present logical arguments. On the question of the judicial propriety of the NIA probe, ASG Tushar Mehta contended that the probe had been consented to by Shafi Jahan’s earlier counsel Mr. Kapil Sibal and the same was necessary to determine whether Hadiya’s was an isolated case or there was an emerging pattern.
Significantly, CJI Dipak Misra has questioned whether the High Courts in its exercise of the powers of jurisdiction under Article 226 can order that a marriage be nullified as has been done by the Kerala High Court in Hadiya’s case. He further stated the possibility of appointing an alternate custodian for Hadiya who is currently in the custody of her father.
The matter has been listed to be heard next on the 9th October 2017.