Hadiya and the arguments, everything that happened in SC today in a nutshell
Today in Hadiya case Supreme Court allowed Hadiya to implead in case. SC Asked her to file an affidavit and Court bars NIA in investigating matters related to her marriage. The court said that it is Hadiya to decide her marriage and NIA can investigate other aspects of marriage.
Here are the full text of today’s Hadiya case arguments. (credits)
Kapil Sibal : We have moved an application for making her (Hadiya) a party to this matter.
CJI Dipak Misra: For what? She has already given her statement here.
Kapil Sibal: Now she is free. We have to hear her version too.
CJI Misra: Our question is how can, in a Writ Petition, a marriage be annulled by High Court?
Kapil Sibal: Yes my lords.
Kapil Sibal: My second point is regarding the investigation. On August 16, 2017 this court had directed that the investigation be conducted under the supervision of a retired Judge of this court.
Manindar Singh: NIA has investigated this case substantially.
CJI Misra: We are not concerned about the investigation. We are asking whether High Court under 226 can annul a marriage in a Habeas Corpus petition.
Manindar Singh: If the marriage is taken to overcome a hurdle, then it must be set aside.
CJI Misra: She has told us, she got married. She can choose independently. She is 24 years old. You can probe into all aspects except marital status. You can investigate, you can arrest anyone, we are not concerned.
J Chandrachud: We cannot inquire into whether the person she married is a good human being or bad human being?
Kapil Sibal: On August 16, 2017, this court had directed that the investigation to be conducted under the supervision of a retired Judge of this court. How can the investigation now be allowed to proceed outside the umbrella of this court?
CJI Misra: We are asking whether HC can annul a marriage of an adult girl of her choice. If an adult says she is married out of her own free consent, how can one contest that marriage? NIA cannot take the umbrella of a court order to investigate the marital status.
Manindar Singh: I am not on the merit. NIA has conducted the investigation as per the court’s direction. If you are not looking those reports then our effort will become waste.
CJI Misra: The issue is a habeas corpus petition. What is the duty of the court in such a petition?
Madhavi Diwan: Your Lordships are looking at marriage in isolation. She was not married at the time the petition was filed before the HC. The prayer at that time was that the girl was unwilling to return to her parents.
Madhavi Diwan: The marriage is merely a device to legitimize her illegal confinement and is a sham.
J Chandrachud: You may be right that the marriage is solely a device. But once she says that she is married, we cannot question the legitimacy of her choice.
J Chandrachud: How can the writ of habeas corpus be issued in respect to an adult girl? Madhavi Diwan: When the girl is an adult, what is the jurisdiction of the High Court to grant the writ of habeas corpus if the girl is deemed to be mentally or intellectually insufficient?
CJI Misra: The girl has appeared before us as well as HC. She is not in illegal detention. Madhavi Diwan: Lordship must hear us. We will address these issues.
CJI Misra: Her choice is independent. We can’t go through the mind of an adult girl. We cannot see how she was brainwashed. Madhavi Diwan: This is a case which needs a detailed hearing. I will respond to all your queries. Much water has flown after first Habeas
Aishwarya Bhatiya (Appearing for Bindhu Sampath) : I have moved an intervention application. I am a mother of a lady who is taken to ISIS camp in Afghanistan. I have already filed a separate Writ Petition.
J Chandrachud: We have not allowed you to intervene in this matter. Your matter is different. That matter is regarding NIA investigation. Let that writ come before us.
CJI Misra: Marriage should be free of any criminal conspiracy. Criminal affability or criminal action. Otherwise, it shall be a bad precedent in law. ‘X’ married ‘Y’- that is it. We cannot get into if the choices are independent.
Madhavi: We are not only concerned about the welfare of her. CJI: She is not a child. If she say’s that I don’t want to go with father If she says she is married on her choice, then who can contest?
CJI: She is an adult and appeared in this court and said I am married. Then what should court do? She said she was in illegal confinement. J Chandrachud: We allowed her to continue her education.
Kapil Sibal: On August 16, 2017 this court had directed that the investigation to be conducted under the supervision of a retired Judge of this court. How can the investigation now be allowed to proceed outside the umbrella of this court?
Manindar: Your lordship must not pressure NIA. NIA is not doing anything with force. CJI: That is an interim order. Generally the marriage cannot be nullified in a habeas corpus petition. So no investigation can be carried out into the marital status.
CJI: Investigation and marriage are different. Kapil Sibal: The investigation should not commute beyond the scope of legitimacy and what court has allowed. CJI Misra: Investigation is one part and marriage is another. We must segregate it. We only go by principles.
CJI Misra: Whether she (Hadiya) should be made a party respondent or a petitioner? Kapil Sibal: If she is made a petitioner, she has to file a fresh SLP. By making her a party respondent, she can say whatever she wants to say by means of an affidavit
(CJI Dictating the order) After dictation Kapil Sibal: This court cannot annual the marriage, just because somebody is aterrorist or so. Charles Shobaraj married multiple times, that too while in jail J Chandrachud: That includes his lawyer too. (Laugh in the court)