Case BriefsHigh Courts

Calcutta High Court: Sahidullah Munshi, J. allowed the appeal for the subsequent dates being asked for by the husband for the potency test but dismissed the appeal made by the husband for the virginity test of the wife as it did not appear to the Court a sound proposition of law.

In the instant case, two revision applications were heard together because the question of law and facts were identical. The suit was filed by the wife seeking annulment of marriage by a decree of nullity under Section 25(i) of the Special Marriage Act, 1954 and alternatively for divorce under Section 27(1)(d) of SMA. Wife filed an application, praying for the potency test of the husband and the same was allowed and on that basis wife pleaded that the marriage was not consummated, considering it a void marriage. The husband filed an application seeking a virginity test on his wife which was rejected. The husband appeared before the Medical Board for the said test and it was unanimously held by the Board that the party should be referred to FMS Department, Calcutta Medical College. The husband did appear before the Board but, he, later on, filed an application before the Court for subsequent dates for his appearance before the board.

The trial court rejected husband’s application seeking virginity test and relied on a passage of renowned author that stated “Virginity test is not a reliable indicator of a female having actually engaged in sexual intercourse because the tearing of the hymen may have been the result of an involuntarily sexual act”. The trial court further rejected the husband’s application for extending the date of potency test before the Medical Board finding him reluctant to appear before the Board.

Learned counsel, Dipanjan Datta, Sayan Datta and Rituparna Saha, for the petitioner, contended that since the wife has made allegations that the marriage was not consummated, she should be subjected to a virginity test.

Learned counsel, Ankit Agarwala and Alotriya Mukherjee, appeared on behalf of the opposite party contended that delay in the potency test would be a great loss to the wife.

The Court opined that the trial court was not justified in rejecting the prayer of the husband for extension of time when it was apparent that the result of the test was crucial and it would decide the fate of the parties. The application was to be allowed for the benefit of both the parties stating that delay in the test is a loss for wife, was not considered valid for refusing the application. Therefore, the revision application was allowed. The Court directed the medical college to allow the petitioner on a subsequent date but that shall be fixed within two months from the date of communication of the order and the petitioner was directed to communicate the same to the Superintendent of medical college. The Court did not find any irregularity or material illegality in the order passed regarding the virginity test. [Sri v. Smt, CO No. 3309 of 2018, decided on 21-06-2019]

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Supreme Court: After the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ refused the plea of Hadiya’s father Asokan to hold an in-camera hearing when Hadiya appears before it, Hadiya appeared before the bench and Senior Advocate Kapil Sibal said that Hadiya has the right to make her own decisions.

The Court heard National Investigation Agency (NIA) which submitted a 100-page report on the cases where Muslim boys have converted Hindu girls by marrying them and that the case of Shafin Jahan marrying Hadiya was also that of Love Jihad. Earlier, the Court had directed NIA to look into the matter in order to facilitate the Court in determining the extent of the ramifications of the issue and said that it will take a decision only after considering all the aspects i.e. NIA report, Kerala Police report and the views of the girl and had hence, directed the presence of Hadiya before it. The bench had also made it clear that it will speak to her not in camera but in open Court.

Kapil Sibal insisted that since Hadiya was present in the Court, it should listen to her and not NIA. When asked by the Court what does she want, Hadiya said:

“I want my freedom.”

Upon being asked whether she wanted to continue her studies on state’s expense, Hadiya said:

“I want to but not on state’s expense when my husband can take care of me.”

Removing her from the custody of her father, the Court directed that Hadiya be taken to college for her studies and that college should allow facility of hostel to her. The matter will now be taken up in the third week of January.

Source: ANI

Case BriefsSupreme Court

Supreme Court: In the case where Kerala High Court annulled the marriage of a Hindu Girl to a Muslim Boy after her conversion to Islam calling it a case of Love Jihad, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ directed the presence of the girl Hadiya before it on 27.11.2017. The bench said:

“this Court shall speak to her not in camera but in open Court.”

The Court also took note of the submissions of Additional Solicitor General Maninder Singh, appearing on behalf of the National Investigation Agency and Senior Advocate Shaym Divan, appearing for the father of the girl that in a case of the present nature when there is material with regard to a pattern of indoctrination, the choice of the person should not be treated as absolute for guiding the jurisdictional spectrum of habeas corpus.

The counsels highlighted the antecedents of the boy and his association with the Popular Front of India, he should not be straight away allowed on the basis of the interaction with the lady until the larger issue is decided.

Senior Advocate Kapil SIbal, appearing for the petitioner i.e. Hadiya’s husband, objected to the said contention.

Earlier, the Court had said that the father can’t insist on her custody.

The Court has listed the matter on 27.11.2017 and Senior Advocate Shyam Divan has taken the undertaking that his client will produce his daughter Hadiya before the Court on the said date. [Shafin Jahan v. Asokan K.M.,  2017 SCC OnLine SC 1259, order dated 30.10.2017]

 

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Supreme Court: In the case where Kerala High Court annulled the marriage of a Hindu Girl to a Muslim Boy after her conversion to Islam calling it a case of Love Jihad, the bench headed by Dipak Misra, CJ questioned the Kerala High Court order and asked how can a High Court, in exercise of Article 226 of the Constitution, annul the marriage of a 24 year old girl and force her to live with her father. CJI said:

“Either we will appoint loco parentis or we will send her somewhere safe. Father can’t insist on her custody.”

Earlier, on 16.08.2017, the bench of the then Chief Justice of India, Justice JS Khehar and Dr. DY Chandrachud, J had ordered a probe by the National Investigation Agency (NIA) after the NIA had told the Court that there is a possibility of this being a case of Love Jihad as many cases have come up where the Muslim boys have converted Hindu girls and have married them. The Court had directed NIA to look into the matter in order to facilitate the Court in determining the extent of the ramifications of the issue and said that it will take a decision only after considering all the aspects i.e. NIA report, Kerala Police report and the views of the girl.

Appearing for Shafin Jahan, whose marriage with Hadiya was annulled by the Kerala High Court, Senior Advocate Dushyant Dave argued that the order directing NIA Probe struck at the very foundation of this multi-religious society and was sending terrible signals across the world.  Rejecting his contention that the Court could not have travelled beyond the prayers made in the petition and ordered an NIA investigation, the Court held that it had the power to do so depending on the facts of each case. The Court will, however, observed that Hadiya’s father could not claim custody to her as she was an adult.

The issue reached the Supreme court after Kerala-native Shafin Jahan challenged the annulment of his marriage by the Kerala High Court which ordered the State police to probe such cases. It was alleged that the girl, a Hindu, who had converted to Islam and later married Jahan, was recruited by Islamic State’s mission in Syria and Jahan was only a stooge.

The Court will now hear the matter on 09.10.2017.

Source: Indian Express

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Supreme Court: In the case where Kerala High Court annulled the marriage of a Hindu Girl to a Muslim Boy after her conversion to Islam calling it a case of Love Jihad, the Supreme Court ordered a probe by the National Investigation Agency (NIA) under the supervision of Retired Supreme Court judge Justice RV Raveendran. State had said that it had no objection to the National Investigation Agency carrying out the investigation, subject to this Court’s ensuring that the investigation is fair.

The Court also directed that Justice R.V. Raveendran be paid a consolidated fee of Rs.1,00,000/- for a sitting with National Investigation Agency at Bangalore, and Rs.2,00,000/ per day for travelling outside Bangalore, apart from reimbursement of all travelling, boarding, lodging and secretarial expenses, while discharging the responsibility entrusted to him.

NIA had told the Court that there is a possibility of this being a case of Love Jihad as many cases have come up where the Muslim boys have converted Hindu girls and have married them. The Court directed NIA to look into the matter in order to facilitate the Court in determining the extent of the ramifications of the issue and said that it will take a decision only after considering all the aspects i.e. NIA report, Kerala Police report and the views of the girl. The Court said that it will speak to the girl ‘Akhila’ in camera before taking a final decision.

The bench of JS Khehar, CJ and Dr. DY Chandrachud, J said that it was entrusting the task to the National Investigation Agency (NIA) as a neutral agency to get a “whole picture” and ascertain whether the particular instance was limited to a “small pocket” or was there “something wider” to the issue.

The issue reached the apex court as Kerala-native Shafin Jahan challenged the annulment of his marriage by the Kerala High Court which ordered the State police to probe such cases. It was alleged that the girl, a Hindu, who had converted to Islam and later married Jahan, was recruited by Islamic State’s mission in Syria and Jahan was only a stooge. The NIA has recently conducted probe into some cases of ‘love jihad’ in which women were allegedly being sent to Syria to join the ISIS. [Shafin Jahan v. Asokan KM, Special Leave to Appeal (Crl.) No(s). 5777/2017, order dated 16.08.2017]