SC Questions Whether Kerela High Court Can Annul Marriage?

The Supreme Court  said that it would examine the question whether the Kerala High Court, by exercising its powers under the writ jurisdiction, could annul the marriage of a Muslim man to a Hindu woman who had embraced Islam.
 The bench of Chief Justice of India Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said they would hear on October 9 the fresh plea of Shafin Jahan who sought a recall of the Supreme Court’s earlier order which directed the National Investigation Agency (NIA) to probe whether there was a wider pattern of alleged love jihad in the case.
The CJI said “The question is whether a High Court, on an Article 226 petition, can annul the marriage.”
Shafin Jahan moved the Supreme Court against the High Court order. But a two-judge bench, headed by the then CJI Justice J S Khehar, ordered an NIA investigation and said it would also examine the contention raised by her father K M Asokan that her conversion to Islam was done fraudulently. The court, however, agreed to hear the woman before taking a final decision on the matter.
Appearing for Shafi Jahan, senior advocate Dushyant Dave contested the order for an NIA probe, saying “it struck at the very foundation of this multi-religious society” and was “sending terrible signals across the world”.
 
Dave’s tone invited the displeasure of the court with Justice Khanwilkar observing “you are so loud that we can’t hear you”. But Dave said he would be loud and pushed his argument: “Two of the seniormost leaders in the BJP are married to members from minority community. Will your lordships order NIA inquiry against them? State is not in appeal, NIA is not in appeal. Your lordships have gone beyond jurisdiction and expanded the proceedings… there was no such prayer (for NIA probe). Court cannot go beyond the prayers,” Dave said.
 
CJI Misra said: “There are two legal issues to be dealt with. Firstly, whether the High Court can annul the marriage of a 24-year-old and secondly, about the NIA probe.”
 
He took exception to Dave’s argument that the court could not go beyond the prayer in the petition. “I am not the one to tolerate such argument. This court has an expansive jurisdiction under Article 136. There are cases in which this court has said it can and it cannot. It depends on the facts and circumstances of each case.”
 
ASG Tushar Mehta, who appeared instead of Additional Solicitor General (ASG) Maninder Singh said  “It was this court which asked us to probe the matter and we found a pattern (in such incidents of marriage in Kerala).”
 
The CJI, meanwhile, observed that Akhila’s father could not claim her custody as she was a grown-up. “Either we will appoint loco parentis or we will send her to a custodian. Father can’t insist on her custody.”