The Supreme Court on Tuesday said it will examine whether the Kerala High Court could annul a marriage while hearing a habeas corpus plea by the parents of a young woman who had converted and married a man from a different religion.
A bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud said: "We want to know how the Kerala High Court can annul the marriage under Article 226 of the Constitution by exercising its special powers to entertain pleas against the State."
The scope of entertaining pleas under Article 226 by the High Court has been expanded to include issues not involving state actors but does it also extend to taking recourse to nullify a marriage, the court observed.
The apex court's remarks came while hearing a plea by Shafin Jahan, challenging the High Court order that nullified his marriage with Hadiya.
The bench also wondered whether the 24-year-old woman could be placed in her father's custody.
Observing that "a father can't have control over a 24-yr-old girl", the court said that it may send her to a safe home and her father can't insist on her custody.
The court had doubts about its own August 16 order wherein it asked the National Investigation Agency (NIA) to probe the conversion and marriage of Hindu girl Akhila, now known as Hadiya after conversion, in Kerala in 2016.
The apex court said it will examine the issues in the course of hearing Shafin Jahan's plea to seek recall of the apex court's August 16 order.
Giving time to the NIA to respond to Jahan's application, the Supreme Court fixed October 9 for hearing the matter.
Meanwhile, the NIA has pointed to a "pattern" of a series of similar incidents of conversion and marriage.
Appearing for Shafin Jahan, senior counsel Dushyant Dave told the court that the NIA probe into Jahan and Hadiya's marriage hits at the very foundation of the multi-religious society.
Hadiya's marriage to Jahan was annulled by the High Court following a petition by her parents.
Hadiya's father alleges that she was forcibly converted by organised groups with links to terrorist outfits.
The woman is presently in her parents' custody at their house near Kottayam.