Arguments Summary Day 4: October 9, 2017
On the fourth day of hearing, Dushyant Dave appearing for the petitioner and Hadiya’s husband Shafin Jahan stated before the court that the Kerala High Court in 5 of its previous orders had taken note of the fact that Hadiya has admitted that she embraced Islam of her own volition with a number of affidavits being filed by her to that effect. He further argued that the present petition would be struck by the doctrine of res judicata for the Kerala High Court has previously dismissed a habeas corpus petition in the given case.Mr. Dave urged the Court that the impleadment applications alleging the broader issue of “Love Jihad” quoting incidents from 2013-14 should be considered separately and the present case should be limited to the cause of the petitioner and his wife, who is a consenting 24-year-old adult in the marriage.
Additional Solicitor General Maninder Singh addressed the issue of annulment of the marriage by the Kerala High Court, stating the same had been done after relying on 5 other decisions. At this juncture, Chief Justice Dipak Misra questioned if where the person is an adult, can the court annul the marriage unless the person in question is not capable of giving full and informed consent, for consent may be invalidated in cases of persons with mental disability. To this Mr. Maninder Singh added that even in cases of indoctrination, consent would not count and there were cases where the investigation had revealed people being trained in hypnotics and the present case was one of indoctrination.
The discussion became heated at this point with Mr. Dave alleging that these arguments were mere attempts to push the political agendas of the government and there had been an abuse of the order of the court directing an NIA probe, as the same was being conducted despite Justice Raveendran declining to oversee NIA investigation. He contended that there was a conscious attempt by the government to invoke theories of 'Love Jihad' in Kerala. Justice Chandrachud intervened requesting counsel to restrict arguments to law noting that the judges being insulated from politics would only limit themselves to the legal issues. Chief Justice Dipak Misra proposed that the case be listed for 13.11.2017 to which Mr. Dave responded with the prayer for a stay of the Kerala High Court order. The prayer was however refused by Justice Misra on account of Mr. Dave’s explosive remarks in court having “bulldozed” the case of the petitioner.
Justice Misra further observed that wherein a habeas corpus petition a mentally sound woman had made a decision to live at a particular place, she would be allowed to do so with dignity and the court would not intervene in such circumstances, thus limiting the scope of the view taken by the Kerala High Court. Mr. Dave pleaded that the Court consider hearing the case earlier so that the petitioner and his wife may spend Diwali together, suggesting that Hadiya may be restricted to Kerala and her passport be kept in custody if need be. He further requested that the court grant audience to Hadiya’s testimony and let her decide whether she would like to accompany the petitioner.
The Bench did not heed the aforesaid requests and has listed the case for hearing on 30.10.2017.