Hadiya: Can court annul the marriage of a “vulnerable adult”? SC to Shyam Divan

The hearing in the Hadiya case at the Supreme Court threw up another interesting question today – can a High Court in exercise of Article 226 jurisdiction annul the marriage of a “vulnerable adult”?.The issue came up pursuant to the submissions made by Senior Advocate Shyam Divan, who was representing Hadiya’s father, Asokan..When the hearing began today, counsel for Hadiya and Asokan informed the Court of the affidavits filed by them..Chief Justice Dipak Misra then remarked that the investigation cannot touch upon the relationship between Hadiya and Shafin Jahan..“Can the High Court nullify a marriage between two consenting adults?”, the Bench asked, as it has before..Divan then proceeded to address the Court on the issue. He submitted that the jurisdiction of the High Court under Article 226 is wide..“It is my submission that what the High Court did is completely correct. The power under Article 226 is very wide and in the peculiar facts and circumstances of the case, the power was correctly exercised.”.Expanding on the said submission, Divan brought in the argument of exercise of parens patriae jurisdiction in the case of “vulnerable” adults..Narrating the facts of the case, Divan said that during a telephonic conversation between Hadiya and Asokan, the former had expressed her desire to go to Syria for “sheep rearing”..“That is when I started making inquiries. There were around 21 instances of people being taken abroad. That is when I filed the writ petition.”.Divan further submitted that the High Court also initially restricted itself to issues surrounding Hadiya’s education..“It was very much like how Your Lordships dealt with the matter. Then one day, a stranger comes with her and he is introduced as her husband. That is when the High Court stepped in to annul the marriage since it was of the view that the marriage was conducted with the object of taking her out of the country.”.But the Bench was not convinced..“The government has sufficient power to prevent an Indian citizen from travelling abroad. Can the courts say that a marriage is not in the best interest of a party or that a person whom a woman married is not good?…we are not standing in the way of the government in preventing citizens from travelling abroad”, remarked Justice Chandrachud..Divan then responded with his “vulnerable adult” argument..“The High Court exercised parens patriae jurisdiction considering the facts and circumstance of the case and because it considered her a vulnerable adult…there is a huge apparatus working for sending people abroad. .The marriage was a charade to prevent High Court from exercising its Article 226 jurisdiction. In such a situation, the High Court was fully entitled to ensure that its orders are enforced.”.Dipak Misra J, however, responded by stating that a concept of “vulnerable adult” is subjective, and that law cannot be based on such subjective concepts..“If you look at history, concepts like vulnerable adult have been in vogue. However, it is a very subjective concept. Law cannot be based on it..Can a High Court nullify a marriage on the ground that one of the parties is a ‘vulnerable adult”?, asked Misra J..Divan responded,.“No that is not my submission. I fully agree with Your Lordship that it is a subjective concept. It should be used sparingly and when other facts and circumstances demand.”.Senior Advocate Kapil Sibal then made his submissions. He said that Divan has made false statements regarding the telephonic conversation between Hadiya and Asokan..Reading the transcripts of the conversation, Sibal told the Court that it was Asokan who brought up the issue of sheep-rearing during his conversation with Hadiya, and that she had never said anything of the sort..“He is making false statements. This is very unfair to the Court”, submitted Sibal..The Court then proceeded to adjourn the matter for March 8, while allowing NIA and Asokan the liberty to file their responses to Hadiya’s affidavit..The Court also recorded Hadiya’s willingness to expunge her statement about activist Rahul Easwar in her affidavit. This was after Easwar’s counsel strongly objected to the same contending that he had, in fact, only tried to help her..The case will now be heard on March 8.