CENTRE OF THE STORM: Hadiya met Shafin Jahan through a marriage website — Way to Nikah — and got married to him while the court was in the process of deciding on a petition alleging that she would be married to a Muslim man and transported out of the country
The Kerala High Court angered women’s rights activists by setting aside the marriage of a Hindu girl, who converted to Islam, to a Muslim boy, claiming it is part of a larger ‘Love Jihad’ conspiracy. The Supreme Court, on appeal, asked the National Investigation Agency (NIA) to investigate the case, sparking further outrage
By Vakasha Sachdev
ON WHAT basis did a court decide that a marriage between two consenting adults should be annulled because of allegations by a third party?
This is the question that Chief Justice of India JS Khehar and Justice Chandrachud should have been asking on Wednesday. They were hearing an appeal against a judgement of the Kerala High Court, which had annulled the marriage between 24-year-old Hadiya (formerly known as Akhila Ashokan) and 27-year-old Shafin Jahan, on the basis of a petition filed by Hadiya’s father.
Instead, the two judges of the Supreme Court decided to ask the National Investigation Agency (NIA) to investigate the case, with a view to determine whether Hadiya was influenced as part of a broader programme that converts women to Islam so that they can marry Muslim men – what the RSS and BJP call “love jihad”.
Now this may not seem so bad to you. After all, the girl’s father is alleging that she was forcibly converted. He’s alleging that he thinks his daughter may move abroad now, to the Gulf or elsewhere, possibly into the clutches of terrorist organisations. There are also allegations that her husband may have ties to people and organisations that may be linked to terrorists.
But you know what? None of those things affect the validity of a marriage between two adults. The courts should never have entertained this case, and they have no authority to annul the marriage under the given circumstances. What’s worrying is, by not taking a decisive stance against this kind of meddling, the Supreme Court is setting a truly dangerous precedent.
What Is the Court Case Actually About?
THE appeal before the Court is first and foremost about the annulment of Hadiya and Shafin’s marriage. The case has been brought by Shafin Jahan as an appeal against the Kerala High Court’s decision to declare their marriage null and void, and grant Hadiya’s parents custody over her.
His Special Leave Petition lists a number of sound legal arguments for why the High Court got it wrong, on procedure and substance. The appeal also specifically asks for interim relief, that is, for the Supreme Court to stay the Kerala High Court’s judgement (thereby allowing Hadiya to decide for herself if she wants to stay with her parents or Jahan) at least temporarily, till the apex court makes up its mind.
Unfortunately, by ordering the NIA probe, the Supreme Court has allowed itself to get caught up in aspects of the case that are not actually relevant to the main issue. Because even if an NIA probe is required, there was no reason to delay interim relief (at the very least) on the annulment and, consequently, the custody issues till this probe is completed. Here’s why.
Kerala HC Mistake 1
THE marriage could not be annulled at Hadiya’s father’s request
Marriages cannot be annulled at the request of third parties, except in very specific circumstances.
- Exception 1 is where at least one party to the marriage is a minor, in which case a parent or guardian could potentially argue that the marriage should be annulled. Hadiya is 24 years old and was no less than 23 when she got married in December 2016. She is therefore certainly not a minor, which means that this exception cannot apply.
- Exception 2 could be where one of the parties has some other mental incapacity, for instance where he or she is mentally challenged. Despite some fairly rude observations about Hadiya’s intelligence, the Kerala High Court does not establish that she suffered from any mental impairment, which does not qualify as an exception.
- A possible Exception 3 could apply if the person requesting annulment is already married to one of the parties, and is claiming that therefore the other marriage should be declared null and void — which isn’t the case here. This is a more tenuous possibility, and in any case would not necessarily work for many Muslim marriages.
Another serious procedural issue that arises from the fact that the petition was filed by Hadiya’s father, is that his petition was not for annulment in the first place! A writ of habeas corpus, that is, production of a person before the court (as was the case here), cannot be used to annul a marriage.
The Kerala High Court therefore made a serious procedural error in law in declaring the marriage null and void on the basis of a petition filed by Hadiya’s father.
Kerala HC Mistake 2
THERE were no valid grounds for annulment of the marriage
Even if a third party like a parent could apply for annulment of the marriage, they would still need to show that there are valid grounds for it.
The Kerala High Court says at the end of the judgement that “The marriage which is alleged to have been performed is a sham and is of no consequence in the eye of law.”
However, the reasons provided by the judges for considering the marriage a sham are blatantly wrong in legal terms (as discussed below), something the Supreme Court could have easily observed at a preliminary hearing.
Was Hadiya’s conversion invalid? — NOT PROVED
The judges raise doubts about the validity of her conversion to Islam because of spelling differences in the name she took after conversion. They also say that “there is no evidence available of her conversion, in accordance with law.”
Both these statements are ludicrous. Hadiya provided multiple statements to the police and affidavits to the court affirming her conversion to Islam. These affidavits had previously been accepted by the court in this case itself, as well as the previous case which had been dismissed. The friends that introduced her to Islam as well as the organisation that helped her after she left home all testified that she had converted.
It is important to note that the court never in expressed words says that Hadiya is not a Muslim, using the arguments above to instead say that:
“All the above facts point to the existence of an organisational set up functioning behind the scenes. In the above factual background, we are not satisfied that it is safe to let Ms Akhila free to decide what she wants in her life. She requires the care, protection and guidance of her parents.”
Do allegations of Shafin’s criminal/extremist antecedents matter? — NOPE
The High Court throws around allegations that Shafin Jahan was associated with extremist organisations like the SDPI, which are irrelevant as there is no prohibition in law even against marrying a terrorist!
They ordered investigations into Jahan’s background, noting that he had some criminal cases against him. The fact that Jahan has some cases against him is irrelevant again regarding the validity of any marriage he enters into.
Did Hadiya’s father need to consent to the marriage? — IRRELEVANT
The only technical objection raised by the Kerala High Court to the marriage itself was that it did not have her father’s consent or the consent of her valid guardian. According to the court, one of the people Hadiya lived with acted as her guardian for the marriage, giving consent that her father would otherwise have given. They found that this person had not actually been appointed her guardian, and that therefore this could invalidate the marriage.
This argument, however, is patently wrong. There is no requirement for a girl’s father to consent to her marriage in Muslim law, provided the girl has reached puberty (generally considered to be at 15). A “wali” may be appointed by the girl to negotiate the terms of the marriage contract, which may have happened here, but there is no requirement for the bride’s father or a formally appointed guardian as stated.
Shafin Jahan’s petition lists out cases of the Delhi and Kerala High Courts which have clarified this position. One of these, Tahra Begum vs. State of Delhi (Delhi HC, 2012), also references relevant Muslim law texts such as Mulla’s Principles of Mahomedan Law and Tyabji’s Muslim Law which set out this position.
Could the High Court make decisions for Hadiya? — HELL NO
The decision of the Kerala High Court eventually comes down to a very simple thing. The High Court uses the concept of parens patriae (ie, that the State is a parent of the nation) to say that Hadiya, a fully capable adult, cannot make her own decisions and therefore the judges have a duty to do so for her benefit.
At the outset, this is an incorrect application of the concept of parens patriae, which, according to the Supreme Court in the Charan Lal Sahu and Aruna Shanbaug cases, can be used by the courts to protect a person who is a minor, insane or incompetent. As Hadiya is none of these things, the Kerala High Court could not have invoked parens patriae to take decisions on her behalf.
The reasoning they provide for doing so is devoid of any authority in law, and is so broad that it could potentially encompass any young adult.
“A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways. This Court exercising parens patriae jurisdiction is concerned with the welfare of a girl her age. The duty cast on this Court to ensure the safety of at least the girls who are brought before it can be discharged only by ensuring that Ms Akhila is in safe hands.”
a Dangerous Precedent?
THE Kerala High Court judgement is full of deeply disturbing statements, such as:
“In the present state of affairs, it is absolutely unsafe to let Ms. Akhila free to do as she likes.”
“She would be safe only with her parents taking into account the fact that she is a girl aged 24 years.”
“Her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents.”
Think for a moment about what these statements say. Note the contempt they indicate for the agency of young, adult women in this country. Note the parochial assumption that a girl’s parents need to protect her, the patriarchal assumption that a woman’s most important decision in life is her marriage.
Note as well, that these are part of the ratio decidendi of a court, not a sexist uncle at a dinner party. That means they have the weight of law.
These views are all too common from the Kerala High Court, and not just in this case. That this case has reached where it did is because previous Kerala High Court judgements have held that parents can make decisions for adult girls. Because previous Kerala High Court decisions have recognised ‘love jihad’ as an actual thing. And nobody raised any objections to this, despite the lack of evidence.
The Supreme Court had the chance to object on Wednesday. But instead it chose to implicitly provide judicial sanction to these ideas, not just in Kerala, but all over India.
By doing so, they are allowing local authorities across the country to meddle with and harass adult women over decisions they take that their parents disagree with. By doing so, they have opened the door to local authorities to prevent inter-faith, inter-caste or any other unorthodox marriages. They have said that legal decisions made by consenting adults can be scrutinised by the premier counter-terrorism and security agency in the country.
All of this without even listening to Hadiya. Without giving any regard to the numerous affidavits she filed setting out how this was her choice. Without recognising that while we may disapprove of certain actions, and while some actions may open up the right to criminal prosecution or legal liability, they don’t give us the right to tell an adult who they can or cannot marry, and whose house they have to stay in.
It may be that at the end of the day, the Supreme Court will uphold the view that the Kerala High Court decision was wrong in law, and strike it down. But by making the NIA probe a precondition to deciding the unrelated question of the validity of Hadiya’s marriage, the damage has already been done. They have not only failed her but also every woman and every minority community in this country.
Courtesy: The Quint
The Other Side of the Story
BORN Akhila Ashokan in Kottayam district in Kerala, Akhila joined a college in Salem, Tamil Nadu, to pursue Bachelor of Homeopathic Medicine and Surgery. In early January 2016, Akhila left her parents’ home and moved in with her friends, two Muslim sisters. Her parents filed a police complaint alleging that her friends Faseena and Jaseena, and their father Aboobacker, had taken Akhila away. A case was registered against Aboobacker and a habeus corpus petition filed asking him to produce Akhila. By this time after trying two other educational institutions, Aboobacker had approached Sathya Sarani, an educational institution and conversion centre in Malappuram. Sathya Sarani sent Sainaba, a social worker, to meet Akhila. From January 7, Akhila started staying with Sainaba. After hearing what Akhila had to say the Kerala High Court dismissed the habeus corpus petition on January 25, finding that she had left voluntarily.
Six months later, on August 17, 2016, her father filed a second petition alleging that efforts were being made to transport Akhila out of the country and to get her hurriedly married off to a Muslim man. He expressed concerns over her safety. The court passed an interim order stating that Akhila should be kept under surveillance to ensure that she was not taken out of the country. Over the next few months the High Court interacted with Akhila on a few occasions and kept itself appraised of her whereabouts. In a hearing on December 19, the court asked her to complete her course and shift to the college hostel. Akhila agreed to the court’s condition. Akhila’s father was asked to appear before the court on December 21 with her certificates so that Akhila could resume her studies.
On December 21, Akhila appeared before the court accompanied by Shafin Jahan. Her counsel told the court that Akhila had married him on December 19 according to Muslim laws. The court was not convinced and questioned why the court had been kept in the dark regarding the marriage. The court observed that the marriage took place on December 19, on the same day the court had heard the case and raised several doubts regarding the marriage.
Advocate C Rajendran, who represented Akhila’s parents at the Kerala High Court, says that the marriage was purely an interference with the administration of justice. “The court had posted the [conversion] case for December 21 and then Akhila appears with a stranger and claims she is married to him. This proves that Sathya Sarani and Sainaba didn’t want to leave her custody and orchestrated a marriage. It means that there is an organisation behind the whole thing,” he says.
The public discourse in Kerala too is seemingly accommodating of the argument that the case is not just about the marriage.
“I understand that Akhila was produced before the court after her family filed a habeas corpus and the court had let her choose her life. In such a context, the court is her guardian. So she is supposed to inform the court if she is getting married, but she failed to do so. That is why the court dissolved such a marriage. I do believe that every woman has the right to choose their religion and the partner of her choice. But there are some technicalities here, which needs to be looked at. There’s no point in protesting against the court verdict without understanding that,” says Malayalam writer MN Karassery.
What further seems to have convinced Akhila’s parents and her supporters is that this is not the first such case. Rajendran says, “There are so many similar cases, like the case of Thiruvananthapuram-native Nimisha*. The court had dismissed the habeas corpus filed by her mother and later she went to Afganistan to join ISIS. In Akhila’s case, this was the second time her father approached the court. The case is not about her individual rights or freedom of choice. Like the court observed, she did not fall in love with a man from different religion and leave her family. She converted and then while the case was going on, got married to a total stranger. This is about radicalisation. She, like Nimisha, has been brainwashed with the stories of horrors of hell and lured into converting with the promise of heaven.”
[*Editor’s note: There have been instances in Kerala where women converted to Islam and are said to have gone to ISIS, but there is no conclusive proof of the same.]