The Supreme Court on Tuesday made it clear that the National Investigation Agency cannot probe the marital status of a Kerala man and a woman, alleged to be a victim of 'love jihad', saying it was concerned about the choice of an adult to marry someone.
The observation came when a bench headed by Chief Justice Dipak Misra was informed by the NIA that it has made 'substantial progress' in its probe in the case as per the direction of the apex court.
The bench, which also comprised Justices A M Khanwilkar and D Y Chandrachud, said the NIA could investigate the matter but the issue of marriage has to be separated from any criminal conspiracy or criminal aspect.
The court observed that the 25-year-old Kerala-based woman, Hadiya, who is alleged to be a victim of 'love jihad', had appeared before it and had specifically stated that she had married Shafin Jahan on her own.
"She (Hadiya) had come before the court and said that she had married him (Jahan). Whether the person she has married is a good human being or not, it is for her to decide," the bench said, adding, "She is an adult. How can anyone say that she cannot marry X, Y or Z?"
"Marriage has to be separated from criminal conspiracy and criminal aspects, otherwise it would create a bad precedent in law. They (NIA) cannot investigate into the marital status," it observed.
The bench also observed that it would examine whether the Kerala high court was correct in annulling the marriage while hearing a habeas corpus petition and was not concerned about the probe by the NIA.
Additional Solicitor General Maninder Singh, appearing for the NIA, told the bench that substantial progress has been made in the investigation.
To this, the bench observed, "We are not concerned with it (probe). Whether you carry on your investigation or arrest someone, we are not concerned."
"You (NIA) can investigate it, but you cannot investigate their marital status," the bench said, adding, "We are only concerned with the choice of an adult to marry someone."
However, Singh said the NIA has carried out a probe into the matter as per the top court's direction and 'it cannot be allowed to go in waste'.
When the counsel for Hadiya's father referred to his plea in which he has raised several issues including that of alleged illegal confinement, and said his daughter was vulnerable, the bench said 'she had said before us that she does not want to go with you. How can we issue her such a direction?'
"Whether she has made an independent choice or not (to marry Jahan), that only she knows. We cannot go into it," it said and posted the matter for further hearing on February 22.
The counsel for Hadiya's father said they would respond on all these issue since he was concerned about the welfare of his daughter as 'much water has flown' in the matter.
At the fag end of hearing, the NIA said it has probed the matter but it was possible now that the woman has said she wanted to be with Jahan.
"We will only go by the principle of marital status and illegal detention. That is all. If you are investigating, you can continue with your investigation. Investigation is one part and the issue of habeas corpus is another part. We must segregate these," the court said.
It also allowed the plea of Jahan to implead Hadiya as a respondent in the ongoing matter.
On November 27 last year, the apex court had freed Hadiya from her parents' custody and sent her to college to pursue her studies, even as she pleaded that she should be allowed to go with her husband.
The court took the decision after interacting with the woman, a Hindu by birth who had converted to Islam and married the man.
During the interaction, Hadiya had told the apex court that she wanted 'freedom' to live with her husband, profess her faith in Islam and she very well understood what she was doing.
The court was hearing a plea filed by Jahan challenging the Kerala high court's order annulling his marriage with Hadiya.
The high court had annulled the marriage terming it as an instance of 'love jihad', following which Jahan had approached the apex court.