Prerna Kumari
The journey from “AKHILA” to “HADIYA” is not that simple. At present “Love Jihad’ a burning issue when a Hindu girl, Akhila, was married to a Muslim man after converting herself to Islam. The Kerala High Court gave verdict that a marriage of Hindu woman to a Muslim was invalid on the basis of “love jihad”. Following this, the Muslim husband filed an appeal in the Supreme Court and the court instructed National Investigation Agency (NIA) to come up with “unbiased and independent” evidence and investigate all similar cases for establishing the pattern of love jihad. It also allowed NIA to examine all similar suspicious incidences to detect a pattern whether banned organisations, such as SIMI, are preying on vulnerable Hindu women to recruit them as terrorists.
#advanceampadstable0#On November 27, 2017, in a major development in the Hadiya case pending before the Supreme Court, Shyam Divan, learned Sr Counsel Appearing for the father of Akhila @ Hadiya, pressed and submitted that the Court should interview Akhila @ Hadiya in camera and not in open Court. However, a bench comprising of Justice Dr DY Chandrachud, Justice AM Khanwilkar and headed by the Chief Justice of India Justice Dipak Misra heard Hadiya in open Court. The Malayalam speaking Hadiya was asked to be present in the Court to ascertain her views on her marriage to a Muslim man, Shafin Jahan. Her parents have alleged it is a case of “forced conversion”.
NIA’s Stand
Additional Solicitor General Maninder Singh, who appeared for NIA, stressed on the report filed by NIA and said agency has found some “extremely critical factual finding which completely demolish the foundation of marriage. He reiterated the charge that the case of Hadiya (Akhila) was one of indoctrination and psychological kidnappings.
Petitioner Shafin Jahan, Hadiya’s husband, had claimed that he met her through a marriage portal Waytonikah, but evidence adduced by the NIA showed that this was “totally false and entirely bogus”, Singh submitted. He alleged that the only condition of the handlers who arranged their marriage was that the groom should be an active worker of the Popular Front of India (PFI), which the ASG claimed was a radical outfit.
He said the NIA had handed over 11 more cases by the Kerala police, of which seven have links to Sathyasarani, a Kerala-based Islamic education centre that has been accused of being linked to Akhila’s conversion to Hadiya. She will say that “I’m doing things on my own. That exactly is the indoctrination,” Singh said. “This is called programming.”
Senior advocate and Congress leader Kapil Sibal, appearing for Jahan, rejected the arguments. “I can give a communal reply to a communal argument. At this moment, we are (talking) about the autonomy of an adult.”
Justice DY Chandrachud then said, “My question is at what stage can a court venture into whether an autonomy of an individual can be probed?”
Sibal replied that the arguments must be so persuasive that the court is impelled to investigate. “Otherwise every other case like this will lead to such probe and it will lead to an outrage in this country… Even if we assume that a woman wrongly decided to marry someone, can the court interfere in every such marriage?” he said. Diwan submitted that the Kerala HC had already looked into the matter and arrived at conclusions. As Sibal persisted with his demand that the bench talk to the woman, Justice Chandrachud said, “There may also be exceptions. You can have something like Stockholm syndrome.” He, however, sought to remind that “liberty of an individual is a cherished value under the Constitution.”
The court then sought to know the view of the Kerala Government. Appearing for the state, senior counsel V Giri said that the Court must first look into the material before it and then proceed with the matter.
Prolonged Arguments
It was argued that she can communicate in English but the court observed that though she can communicate in English, she may not be able to effectively articulate in that language. Hence, V Giri, Senior Advocate was requested to assist in translating the questions posed to her in Court and the answers given by her. The brief exchange was part of a prolonged interaction, mostly with Justice Chandrachud, covering a range of topics about her qualifications, interest in studies, perception of life and what she intends to do in future. She stated that she intends to continue her internship/housemanship which she had left because of certain reasons and her ambition is to become a full-fledged Homeopathic Doctor. She expressed her desire to stay in the hostel and complete the course in the said college, if a seat is made available. She asked the court to make her husband her guardian to which the Judges refused. “A husband cannot be a guardian of his wife. A wife is not a chattel. She has her own identity in life and society. Even I am not guardian of my wife. Please make her understand,” said Justice DY Chandrachud. The Court directed that she be taken to college at Salem for her studies and also directed the college to allow facility of hostel to her. Her course is for 11 months. Needless to say she is to be treated like any other student and guided by the hostel rules. The Dean of the College directed to approach the Ld. Apex Court if there is any problem with regard to any aspect. She requested for being accompanied by policewomen in plainclothes to which the State was directed to attend to the request appropriately. The Supreme Court directed the NIA to continue the investigation in accordance with law. The matter is listed in the 3rd week of January 2018 for next hearing.
(The writer is Advocate, Supreme Court)
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