Hearing the controversial Kerala marriage case, the Supreme Court on Monday directed that Hadiya (Hindu girl Akhila who converted to Islam and married a Muslim man) be produced before it on November 27.
The court said it could consider the contention of the National Investigation Agency (NIA) and Hadiya’s father K M Ashokan, that she had been indoctrinated by radical groups and her consent was not free, only after it had talked to her.
“Having heard learned counsel for the parties, we are inclined to modify the order dated August 16, 2017 and accordingly direct the presence of the daughter of the first respondent at 3 pm on November 27, 2017,” said a Bench of Chief Justice of India Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud.
Justice Chandrachud was also part of a two-judge Bench headed by the then Chief Justice J S Khehar which, on August 16, said that “before hearing the matter finally on merits, this court shall require the presence of the concerned girl, namely, Akhila, the daughter of respondent no.1, and will speak to her in-camera before taking a final decision.”
On Monday, however, the three-judge Bench said it would not speak to her in-camera but in open court. The CJI said the court only wanted to know her mind. “We will not tell her to stay here or there,” he said.
Ashokan undertook to produce her in court on the given date.
The CJI repeated the question he had raised at the last hearing on how the Kerala High Court could annul a marriage while hearing a Habeas Corpus petition. The HC had annulled Hadiya’s marriage to Shefin Jahan on May 24, and given her custody to her father.
Appearing for the NIA, Additional Solicitor General Maninder Singh explained that the HC had done so given the peculiar facts of the case. Akhila’s conversion to Hadiya, the ASG said, had nothing to do with marriage but was for learning Islam. He said she had been married off to Jahan, who she hardly knew, by a woman called Sainaba with whom she was staying. The ASG said this was done to avoid legal problems which could result in a situation where she would be taken away from those who had indoctrinated her.
To the CJI’s question on the constitutionality of the HC’s order, Singh said: “Constitutionality of the law does not mean it is cast in stone and doesn’t require any variation depending on the facts of a case”. He added that it was a case of “psychological kidnapping”.
The CJI said her consent would be vitiated if she was not in a healthy mental state.
The ASG submitted that the HC had already found that she was not in a state of mind to take decisions on her own, and added that there was a “well-oiled machinery by which even girls at that age are targeted”. “In such cases of indoctrination, it would be an exception to consent,” he added.
On the HC granting her custody to her father, the ASG said parental authority was a principle accepted by the judgments of both the Kerala and Madras high courts and by American law. The Kerala police had handled over 89 cases in which it suspected what is called love jihad, and the facts of nine of these were strikingly similar to the Hadiya case, he said.
NIA sources, meanwhile, said the agency’s report to the SC had listed the nine cases — eight women and one man — registered by the Kerala police since January 1, 2015. Sources said all the “victims” in these cases are now with their parents.
The agency, however, is yet to examine Hadiya. “We have not examined her as yet as her father says she is still too scared and is not ready for a free-wheeling conversation with NIA officers,” said an NIA officer.
The ASG also claimed that Jahan had criminal antecedents. To this, the CJI wondered if there was any law stating that a person cannot get married to a criminal. The ASG repeated that marriage was not the issue.
Senior Counsel Kapil Sibal, appearing for Jahan, opposed the charge that he had criminal antecedents.
Senior Counsel Shyam Divan, appearing for Ashokan, said there was a “huge organisational apparatus operating in Kerala… to radicalise young impressionable minds… They are preachers, have psychologists… and not just for children but for adults and even the old.”