The Court also disapproved the Kerala HC's order nullifying the marriage of Shafin Jahan with a Hindu girl Hadia alias Akhila.
New Delhi: The Supreme Court on Tuesday indicated that it would re-consider its earlier decision to order a probe by the National Investigation Agency (NIA) into the 'love jihad' controversy and said prima facie it was of the view that the father cannot hold custody of his 24-year-old girl.
Giving this indication a three-judge Bench of Chief Justice Dipak Misra and Justices AM Kanwilkar and DY Chandrachud also disapproved the Kerala High Court’s order nullifying the marriage of Shafin Jahan with a Hindu girl Hadia alias Akhila, who converted to Islam exercising its writ jurisdiction under Article 226 of the Constitution.
Senior counsel Dushyant Dave, appearing for Shafin Jahan, strongly opposed the order directing NIA probe.
Raising his voice, Dave said the apex court had exceeded jurisdiction and must recall order. He pointed out that two senior Muslim BJP functionaries had married Hindus and asked will it be called love jihad and would the court order investigation against them? He said the order struck at the very foundation of a multi-purpose religious society and is sending wrong signal world over.
The CJI asked Dave not to raise his voice but to advance logical and legal arguments.
The CJI said, “Our preliminary view is a father cannot be seen dictating the personal life of a 24-yr-old daughter. The girl is 24 year old and it is absolutely clear that she cannot be by force under custody of her father. The father cannot say he should have 24-hour custody of her. We may appoint a custodian or send her somewhere safe.”
The CJI said, “We will hear logical and legal arguments on two issues - can the High Court nullify a marriage exercising jurisdiction under Article 226 and was an NIA probe necessary.”
Appearing for NIA, Additional Solicitor General (ASG) Tushar Mehta brought to the notice of the court that the order for a NIA probe was passed with the consent of senior counsel Kapil Sibal, who appeared for the petitioner, Shafin Jahan.
The ASG said though the NIA was not a party to the proceedings, it was made a party at the instance of the former CJI JS Khehar as the court wanted NIA to find out whether there was any pattern emerging in the love jihad case.
On August 16, the apex court had ordered the NIA probe under the supervision of retired judge RV Raveendran after the Additional Solicitor General Maninder Singh informed the Court that there was prima facie material to establish that some extremist organisations linked with the banned SIMI (Students Islamic Movement of India) were engaged in the conversion of certain Hindu girls into Islam and their gradual radicalisation with organisations like the ISIS.
The alleged conversions had gained the sobriquet of “love jihad” in Kerala and the boy Shafin Jahan moved the apex court for production of his wife Akhila alias Hadiya.
In a fresh application for recall of this order, Shafin Jahan said that on August 17, 2017 activist Rahul Easwar visited the home of the girl’s father, where Akhila has been detained.
Easwar, after taking due consent from the family, filmed a video of the family, including Akhila in which she asks the following “is this house arrest what I deserve? Whether this should be the purpose of my life.”
This video clearly shows that the Detenue does not wish to be kept under house arrest. Rahul Easwar has also gone on to say to NDTV that the Detenue told him, that "she wants to live and die as a Muslim.” She has also confessed in the video, "ask my father and mother, whether they torture and abuse me for following my religion and its practices.”
He pointed out that on a complaint the State Human Rights Commission acting President P Mohandas himself has gone on to make a statement that Akhila is undergoing immense human rights violations at her house.
He said despite Justice Raveendran declining to supervise the probe, the NIA was preceding with the investigation and it was reported that the NIA has already found a "link". This was in clear violation of this Court's order as the investigation was to be overseen by Justice Raveendran and that without his supervision, the same cannot be undertaken and be said to be fair.
He said evidence had shown that Akhila has accepted Islam on her own free will. However, since the impugned order of the High Court of Kerala dated May 24, 2017 she has been detained against her will and her rights have been freely violated.
She remains to be in the custody of her father against her will and that he has completely cut off any and all contact between the Detenue and the outside world. In the interest of justice it would be appropriate and just to recall the order of this Court dated August 16, 2017 to the extent of the directions to NIA to investigate this matter, and direct the Detenue to be produced before this Court, he said in the application.