Syyed Mansoor Agha relates the story of Akhila alias Hadiya, hails the apex court March 8 verdict restoring Hadiya to her husband Shafin Jahan and thus reinstating an adult woman’s right to marriage of her choice.
People are elated at SC order (8 March) restoring Hadiya to her husband Shafin Jahan. Born in Vaikom, Kottayam in Kerala, the only child of Mrs. Ponamma, a devout Hindu, and Mr. Ashokan K. M., a retired serviceman, who bets to be an atheist, was raised as Akhila Ashokan. She lived with her parents until she passed her 12th standard exam in the second attempt.
It was simply a question of basic freedom of religion and conscience, as Article 25 of the Constitution of India lays down, “All persons are equally entitled to freedom of conscience and the right to freely profess, practise, and propagate religion subject to public order, morality and health.” Since it was the case of a Hindu girl reverting to Islam and marrying a Muslim man, it was hyped and painted as a case “Love Jihad.”
After getting her 12th certificate, she went to Sivaraj Homeopathic Medical College, Salem in Tamil Nadu to pursue Bachelor of Homeopathic Medicine and Surgery course. There she came in close contact with two Muslim girl students, Faseena and Jaseena, both daughters of Mr. E. Abubakr, founder of SDPI. As she told the High Court (January 19, 2017), during hearing of a habeas corpus petition filed by her father, she had become “impressed” by the two girls’ “timely prayers and good character” which made her “interested in Islam”. She stated in the court that, she was taken in by Islam after reading Islamic literature and watching videos on the internet. Clad in a modest dress with a headscarf, she said in her testimony in the court, that she adopted Islam with her free will and choice and had been practising Islam for last three years without formally announcing the change of her faith. She started the legal procedure for conversion only by September 2015. Interestedly during her journey to Islam, Shafin Jahan, now her husband, was nowhere in the picture.
Her parents learned about her change of faith when she refused to participate in her grandfather’s funeral ritual. She told the court that she left her home at her will because her father had seen her praying the Islamic way and warned her against. Father’s threat made her leave her home on January 2, 2016. She went straight to Jaseena’s and Faseena’s house in Perinthalmanna in Malappuram district.
Mr. Aboobacker, the father of her girl-friends, took her to a Muslim education institution named KIM, but she was refused admission. She was then admitted as a day student to Therbiathul Islam Sabha, Kozhikode after she furnished an affidavit that she was accepting Islam on her free will. Since Mr. Aboobacker was reluctant to keep her at his residence for political reasons, he approached a third institution named Sathya Sarani, in Manjeri, Malappuram. On Sathya Sarani initiative she shifted to Sainaba residence. Subsequently, she returned to her Medical College wearing the scarf.
Four days after she left home, her father filed a police complaint against her girl-friends and their father Mr. Aboobacker on January 6, 2016. Nearly a year after she had left her home, she presented herself in the court on 21 December 2016. Akhila, now Hadiya, informed the court that she was an adult and whatever she had done was at her free will and personal choice. Hadiya told the court that she had been following Islam for three years, without formally announcing the change of faith. Ashokan alleged in the court that Sathya Sarani, where she was getting lessons in Islam, was involved in several illegal and forced conversions. But the Kerala High Court dismissed the habeas corpus petition, after finding that Akhila was not in illegal confinement. Justice CK Abdul Rahim and Justice Shaji P Chaly said in their order passed on January 25, 2017, “The original petition is hereby disposed of by recording the fact that the alleged detenue is staying in the above-said institution on her own free will. It will be left open to the petitioner and her family members to visit her at the above institution, subject to regulations if any regarding visiting time.”
Second Petition
Following this, Ashokan filed a second petition in August 2017, alleging that Hadiya is likely to be transported out of the country after getting her married off to a Muslim man. The High court passed an interim order to keep Hadiya in surveillance to ensure that she was not taken outside of India. While she was in surveillance, the police found that she has moved from Sainaba’s house, where she lived in Salem to an undisclosed location. Though Hadiya denied any plan to travel abroad, the court directed her to stay at a women’s hostel in Kochi.
When the court interacted with Akhila in person in the month of September 2017, she told the court that she was being lodged in the hostel for no fault of her and that she should be allowed to reside in a place of her choice. She told the court that she does not possess a passport so there was no possibility of her being taken to Syria, per her father’s apprehension. The court sent Akhila with Sainaba, and asked them to inform the Police if she was shifting to another place again.
In November, the court sought her source of income. Akhila said that she was getting Rs. 20,000 a month as a doctor-trainee. The amount is enough to sustain her. However, the court noted that she had not completed her House Surgeoncy and that she will not be eligible to practise. In the next hearing on December 19, the court directed her to complete her course and shift to the college hostel. Akhila agreed to the court’s condition. Her father was asked to appear before the court on December 21 with her certificates so that Akhila could resume her studies.
Hasty marriage
Two days later, on December 21, Akhila appeared before the court accompanied by Shafin Jahan, ‘a stranger’. Her counsel told the court that Akhila had married Shafin Jahan on December 19. This proved to be a wrong legal strategy which turned the entire atmosphere at the court. The judges raised many questions. The court observed that the marriage took place on December 19, the day the court had heard the case. According to Akhila’s counsel, the wedding happened at the house of Sainaba and was solemnised by the Qazi of Puthoor Juma Masjid.
Raising several doubts and the court observed, “The question that now crops up is whether the marriage that has been allegedly performed is not a device to transport her out of the country. We are not aware of the identity of the person who is said to have married her, nor his antecedents,” the court said.
While Judges K Surendra Mohan and Abraham Mathew grilled the witness, about the circumstances of hasty marriage, the Government Pleader submitted that Sainaba was involved in another case of forced conversion and in that case too, the converted woman had married a Muslim man “to avoid any interference from the court.” The court also sought police report about Shafin.
Police reported that Shafin Jahan, a native of Kollam, is a member of the Social Democratic Party of India (SDPI), the political wing of the Popular Front of India (PFI). He is a college graduate and wanted to take Akhila to the Gulf, where his mother lives.
In January 2017, the police reported that Shafin was a part of a WhatsApp group ‘Thanal’ run by SDPI Kerala. Mansy Buraqui who was arrested and then released by the NIA on the suspicion of his links with ISI was also a member of the same group Thanal. Though he had later been removed, the fact remains that Sri Shafin Jahan had an association with him. He is also accused in a criminal case.
Marriage annulled
On May 24, 2017, the Kerala High Court that had earlier allowed Akhila to lead the life of her choice said in an order, “Shafin Jahan is one such person who has been assigned to play the role of going through a sham of a marriage with Ms. Akhila, with the object of transporting her out of India… According to the learned counsel, it was with the said objective that the entire sequence of events had been planned and executed. The marriage was conducted in a hasty manner with the object of overreaching the jurisdiction of this Court.” The court concluded that Shafin was “only a stooge who has been assigned to play the role of going through a marriage ceremony.”
The court remained unconvinced about many elements in the story. It said that the case was not about “a girl falling in love with a boy of a different religion and wanting to get married to him. In the first place, it is not normal for a young girl in her early 20s, pursuing a professional course, to abandon her studies and to set out in pursuit of learning an alien faith and religion. The normal youth is indifferent towards religion and religious studies. Though the possibility of genuine interest in the study of religion on the part of any person cannot be ruled out, such inclination is in the first place out of the ordinary. Though the alleged detenue in this case is stated to have set out to study Islam, her study has been confined to merely attending a course of two months duration conducted by the 6th respondent (Sathya Sarani). She does not appear to have conducted any study thereafter,” the court observed.
“Are there any radical organisations involved, are questions that plague an inquisitive mind. But sadly, there are no answers available in this case,” the court said. Calling the young woman, ‘weak and vulnerable’, the court said that ‘she had no clear plans for her life or future and said that there was an organised racket behind the conversion.’
The court, in what has stunned legal experts and jurists, nullified the marriage and sent Akhila in the custody of her parents. “As per the Indian tradition, the custody of an unmarried daughter is with her parents, until she is properly married off,” the court observed.
Confined to Parents Home
Though the court order was to only provide her police protection, she was not permitted by her father to step out or meet anyone or use phone. She was fully surrounded by police inside and outside the house. His father permitted Chairperson of State Women’s Commission, who eventually gave a certificate of his decent behaviour with the virtually enslaved daughter. But he prevented the Chairperson of National Commission for Women. He also filed trespass cases against seven social activists who wanted to visit her.
In the Supreme Court
Two months after the Kerala HC nullified their marriage, Shafin filed an SLP in Supreme Court. Hearing the case, the apex court took note of the observations of the HC that there were radical groups influencing and converting young girls. On this the SC on August 16, 2017, ordered an NIA probe into the incident. The court also directed to present Hadiya on next hearing.
At the Supreme Court, Hadiya expressed her will to continue practising Islam, live with her husband and complete her internship. She said she was unlawfully kept under custody at her parents’ home and demanded freedom. The Supreme Court allowed her to return to Salem and pursue her internship.
On 23rd January 2018, Counsel for Mr. Ashokan argued that the circumstances leading to the marriage must be investigated, but the court emphasised, “Hadiya’s marital status could not be looked into by the Court. Being a 24-year old adult, Hadiya had the power to make her own decisions, and the Court could not compel her to go to her father or husband against her will. Neither could the Court look into the character of the person Hadiya had married. The bench reiterated that investigating the marriage in such a manner would set a bad precedent in law.”
On March 8, the bench comprising Chief Justice Dipak Misra, Justices AM Khanwilkar, and DY Chandrachud set aside the HC order of annulling her marriage and concluded that after their interaction with the 25-year-old girl they had found that she had “exercised her consent in getting married”. The court freed Hadiya to live with her husband Shafin at her will.
“Can a court say a marriage between the consenting adults is not genuine? We cannot say that she married the right person or the marriage was in her best interest. She came to us and told that she married by her own choice”, a bench also comprising Justices A M Khanwilkar and D Y Chandrachud said.
However, the court also said the NIA would continue its probe into the criminal dimension of the case if any. The apex court had on January 23 made it clear that the NIA cannot probe the marital status of Hadiya and Jahan. Hadiya has also claimed that her husband has nothing to do with the ISIS.
Father Wants Her Back
Disappointed of SC order, Hadiya’s father said he would seek legal recourse to the apex court’s latest judgment. But now he is content with her daughter’s practising Islam. He told a news channel, “Akhila can practise a religion of her choice but we do not want her to leave us.”
He said, “Akhila has been influenced so much that she tried to convert her mother too. The mother told me that Akhila was questioning her on why the family didn’t have any progress despite faithfully praying to the Hindu deities. She told her mother that she must also embrace Islam so that her mother can go to heaven and not to hell.”
Many read the case as a clear violation of rights, and arguments have been made in the public domain that this is about Akhila’s personal rights and that the courts have no right to nullify the marriage of two consenting adults. The March 8 SC verdict has set the things in order.
[The contributor is a civil rights activist and a senior Urdu journalist. [email protected]]