Asking whether there is any bar in law against an adult woman marrying a criminal, the Supreme Court on Monday ordered the production of Akhila alias Hadiya, a Hindu girl in Kerala who converted to Islam and subsequently married a Muslim, before it at 3 p.m. on November 27.
A Bench, led by Chief Justice of India Dipak Misra, said the court first wanted to know whether her conversion to Islam and marriage to Shafin Jahan was of her own volition.
The court overrode the submissions made by the girl’s father, in whose custody she is, that she had been indoctrinated and her consent should not be treated as absolute.
The father, represented by senior advocate Shyam Divan, submitted that Mr. Jahan was a pawn in a “huge organisational apparatus” to radicalise young persons in Kerala. He said the questioning of his daughter should be done in camera, and not in open court.
The National Investigation Agency (NIA), represented by Additional Solicitor- General Maninder Singh, said a report was filed on Monday showing how a well-oiled machine was at work indoctrinating women. He called the conversion and marriage a “psychological kidnapping.”
“If someone is doing an illegal act, you [the NIA] can react. But is there any prohibition in law that a major cannot fall in love and marry a criminal? You can detain the criminal. This issue pertains to a marital relationship,” Chief Justice Misra responded. The court stood firm in its decision to hear the girl first.
“When we call the person and question her... at the time, if we have any doubts that she was not free to make her choice... then we will take a final call...we will not go by the pulse or impulse of society, but by the law of the land.”
Mr. Singh said “indoctrination is an exception to free consent.”
The Supreme Court has repeatedly questioned how the Kerala High Court could annul the marriage and transfer the custody of an adult to her father, on the basis of a habeas corpus petition filed by the father.
“In normal cases of habeas corpus, the person is produced. But this was a case of indoctrination,” Mr. Singh submitted.
“In a composite and plural culture like ours, constitutional courts respond to radicalisation. In the U.S. and the UK, courts respond well before a person crosses over to the realm of criminality. Courts cannot remain silent in plural societies,” Mr. Divan said, justifying the High Court’s decision to annul the marriage.
“But she has been kept in confinement,” Chief Justice Misra remarked. Mr. Jahan’s lawyers, led by senior advocate Kapil Sibal and advocate Haris Beeran, said there were videos to prove that the girl was being kept against her wishes.
In an earlier hearing, the Bench, also comprising Justices A.M. Khanwilkar and D.Y. Chandrachud, had asked how the Kerala High Court, on May 24, annulled the marriage of the girl, who is an adult, while exercising writ jurisdiction under Article 226 of the Constitution.
“We will hear logical and legal arguments on two issues — can the HC nullify a marriage exercising jurisdiction under Article 226 and was an NIA probe necessary,” Chief Justice Misra had observed.
The apex court on August 4 had passed an order directing the NIA to use this case as a point to investigate whether there is a pattern of radicalisation in Kerala. In an application for recall of the August 4 order, Jahan had requested the apex court to stop the NIA probe in light of subsequent events showing the girl converted of her own free will and she is being confined and “tortured” by her parents. Jahan also sought a direction to be issued to the Director General of Police, (Law and Order), Thiruvananthapuram, Kerala to produce the girl before the Supreme Court. It said that keeping the girl in custody against her will wherein she is not free to practice the religion she has chosen of her own free will is a clear violation of her fundamental rights,” Jahan said.
