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The correction by Supreme Court

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The correction by Supreme Court
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The Supreme Court on Thursday upheld Hadiya’s marriage to Shafin Jahan and set aside a judgement of a two-member bench of Kerala High Court that had annulled it.

The verdict by the division bench headed by Chief Justice Dipak Misra has become a historic one concerning personal liberty and marital choices of adults. The apex court has stated that Hadiya was free and that she could live with the person of her own choice. The court also stated that in a habeas corpus petition, the High Court had no right to nullify a marriage under Article 226 of the Constitution of India. The division bench observed that a marriage was a decision between two consenting adults and therefore a third party cannot intervene in the case of a marriage, and ipso facto, the reasons which the National Investigation Agency (NIA) cited for the marriage to be invalid cannot be accepted.

Though nullifying the exercise of authority by the two institutions of power, i.e. the Kerala High Court and the NIA, on a woman’s personal liberty and upholding her fundamental rights above everything else, on International Women’s Day itself is, albeit coincidental, quite significant. The Supreme Court which stated the NIA should not probe into the marriage, has unequivocally made it clear that the decision of an adult about her choice of a partner should be respected, that marriage was part of India’s plurality and that it should be safeguarded. The division bench which separately examined the probe against Jahan for his alleged terror links and marriage also stated that the verdict would not be a bar for the NIA to continue its investigation and to take appropriate action if there was any criminality involved. However, the court ruled that no further probe should be carried out into marriage. The verdict has thus put an end to the debate on the subject of personal liberty in the Hadiya case.

Eminent legal experts had already pointed out that the controversial verdict of the High Court on May 16, 2017 was against the fundamental principles of the Constitution. The HC was falling into the trap of the rampant propaganda carried out by the Sangh Parivar champions and others without the basis of any facts. The fact that it was the High Court itself which had on an earlier occasion rejected the fear of ‘Love Jihad’ is more amusing. In Kerala, where religious conversions take place extensively for reasons ranging from love to intellectual and political factors, Hadiya's case should not have been made so complicated. At one point, the High Court verdict, now set aside by the Supreme Court, became a sharp axe for fissiparous forces to pull down the religious amity that formed the bedrock of Kerala society. The total failure of Kerala government to take the High Court verdict in its true spirit and to treat individual freedom at its face value, also became the cause for making the social atmosphere so vitiated. In addition, the unilateral approach of Kerala police of creating a prison-like situation for Hadiya at her home and denying her freedom of conscience for over five months also played a big role in complicating Hadiya case.

The High Court in effect had reinforced the narrative that as soon as an allegation of extremism is raised, it is easy to deny fundamental rights of an individual and courts will endorse that. Even the Supreme Court was confused at one point by a question about what to take up first, the individual liberty of a woman or the NIA's allegations of the threat posed by extremism. But the SC made its path to a wise judgment easy by bringing Hadiya before the bench and then by segregating the two issues of NIA enquiry and the right to marriage of an adult woman. Thus through Hadiya's case, the apex court has been able to establish that the individual's freedom and rights are of primary importance and the constitutional step is to protect them. At the same time, the court judgment always gives a big lesson that the matter of religious conversions has to be approached with a little more equanimity. Religious conversions and love marriages between different religious communities should not influence litigations in a secular social order. That is where Kerala police and high court erred. And that is the error the Supreme Court has now corrected.

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