In this article, Shreyas Shridhar of WBNUJS, Kolkata does a case analysis of the Hadiya Case.

The Curious Case of Hadiya

The present write-up briefly aims to analyse the two questions framed by the Apex Court in the infamous Hadiya case which will be addressed by the Supreme Court. The case has been subjected to a lot of media polarisation and through the debate many have lost sight of the aggravating facts and circumstances which form the essence of the judgement given by the Kerala HC.

The brief facts of the case

• Akhila influenced by her friends decided to convert to Muslim religion. She did so of her own free will and conduct. However, the circumstances which gave effect to the conversion are suspicious. For instance, the organisation is considered a radical extremist organisation etc.
• The most important event which is often overlooked by the media is the sudden marriage which happened without informing either the Kerala High Court or Akhila’s parents. This aggravated the case and weakened Akhila’s claims that it was based on her own free will and consent.
• Shafin Jahan, Akhila’s husband came in a later hearing to the Court and told the Court that he wanted to take his wife to his workplace in Syria. These among other facts attract sufficient and reasonable doubt due to which the Court annulled the marriage.
• The Supreme Court then allowed NIA to take charge of the case and identify whether this case is a part of certain pattern. In arguendo, pattern or no pattern there is no harm in allowing NIA to investigate the case so as to allow the SC to do complete justice.
• The SC is hearing the case and very recently allowed Akhila to pursue her education and give her custody to the College authorities. This is a welcome step as this removes the limitation on her freedom and right to love with dignity. The case raises few fundamental question of law.

Can High Court annul a marriage under Article 226 of the Constitution of India?

Article 226 of the Constitution of India,[1] gives wide-ranging powers to High Courts, for enforcing any of the rights conferred by Part III and ‘for any other purpose’. It is contended that the High Court can annul a marriage if it is satisfied that the marriage has been orchestrated under suspicious circumstances. There is a lack of decisions which address this specific question raised by the Supreme Court in the latest hearing of Shafin Jahan v. Asokan K.M. case (Hadiya case).[2]

A brief analysis of the Kerala HC judgement in Asokan K.M. v. Superintendent of Police,[3] will help us arrive at the conclusion that marriages can be nullified based on aggravating facts and circumstances. The Court did a thorough analysis of the circumstances which led to the marriage and observed that the case was not an ordinary instance. The following points were observed by the Hon’ble Court to nullify the marriage between two so-called ‘consenting’ adults;

• The Court observed that the present case had to be viewed through the lens of a ‘forced conversion.’ Akhila (alias Hadiya) came in contact with a lot of people who influenced her to convert to Islam. Her conversion was greatly influenced by an unauthorised Islamic Conversion Centre, which also happens to be a banned radical organisation. In Shahan Sha A. State of Kerala,[4] the Kerala HC recognised the existence of forcible conversion by radical groups targeting young girls from different communities. Further, the Court observed that “there are too many incongruities that militate against the story put forward by Akhila.”
• It is quite clear that the marriage contracted between Akhila and Shafin Jahan was an arranged one rather than a love marriage. The same was organised in secrecy by one of the respondents who clearly had no authority to act as a guardian and perform the marriage according to Islamic religious rights. The Court expressed strong dissatisfaction at the sudden turn of events and the immediacy with which Akhila was influenced to marry a complete stranger. It held such a step to be “an interference with the dispensation of the justice by this Court and that the respondents in question have betrayed the trust reposed on them by the Court.” It further observed that, “the alleged marriage is only make-believe, arranged in a chess-board manner, intending to take the detenue out of reach of the hands of the Court.” The marriage was conducted without the presence of Akhila’s natural guardians, who were alive. The petitioner i.e. the father had no such issues with Akhila practising Islam if that was her wish but this marriage strengthens his side of the story and the fears that this could be a case of ‘love-jihad.’
• Interestingly, the Court on the basis of evidence produced held that there was no conclusive document to prove that Akhila got converted to Islam. Further, there is no certainty with respect to the name of Akhila in the marriage certificate.
• The Court took note of the facts that the person who had organised the marriage of Akhila was involved in another case of forcible conversion. Further, the husband in the alleged marriage is an accused in a criminal case. It is obvious that no prudent parent would want her daughter to marry a convict who has alleged links with radical organisations. The Court went to the extent of qualifying Shafin Jahan as “a stooge … assigned to go through a marriage ceremony.”

In light of the aforesaid, the Court keeping in mind the aggravating circumstances and the plight of Akhila’s parents as well as the tactics adopted by one of the parties, declared the alleged marriage to be null and void. This judgement turned heads as the same was not in the prayers of the parties and was given in a writ petition due to apparent misrepresentation and contumacious conduct of the Akhila.

Was an NIA probe necessary?

The second question framed by the Court questions the necessity for a central level investigation. On August 16, 2017, the SC directed the Kerala Police to assist the National Investigation Agency in examining whether this case is an isolated one or a bigger conspiracy is involved.

At this juncture, it is pertinent to address the relevant jurisdiction which allows the Court to direct NIA probe in the case. The Apex Court in Bharati Tamang v. Union of India,[5] as well as various other decisions,[6] enunciated principles which allowed Courts to ensure the effective conduct of prosecution. Giving a wide range of powers to Courts to ensure that no miscarriage of justice happens, the Courts, if need be, can even constitute SITs or entrust the investigation of a case to CBI or any other independent agency.

The High Court has, therefore, inherent and wide powers under Article 226 of the Constitution[7] and can direct NIA to undertake investigations to better appreciate the suspicious and complex chain of events. In addition to this jurisdiction, the NIA can also proceed to conduct investigation u/s 6 of the National Investigation Agency Act, 2008,[8] with reference to the offences which are enumerated in the Schedule to this Act.[9]

Sh. Asokan K.M., father of Akhila, on 16.08.2016 filed a writ petition WP (Crl.) No. 297 of 2016 and claimed that there was a risk that her daughter could be taken away to Syria to join extremist organisations like ISIS. He further claimed that the conversion was suspicious as it was assisted by certain radical Muslim organisations and under coercion/misrepresentation.

Again, the marriage happened immediately and without informing the Court while the petition was still sub judice. Interestingly, in a subsequent hearing on 21.12.2016, Shafin Jahan accompanied Akhila, who stated that he intended to take her abroad where he was working. This contradictory statement created reasonable doubt in the eyes of the Court and therefore, it was justified to order a probe.

The necessity of the probe lies in the fact that extremist organisations target Muslim youths who are generally disillusioned to convert to Islam and then forced to work for terrorist factions. It is unfortunate that such cases of ‘love-jihad’ are on the rise and therefore, it is indeed a necessity to investigate the present case in light of the observations made by Kerala HC.

Conclusion

The Kerala HC was justified in ordering an NIA probe in the case because clearly it was not an ordinary case and had created suspicion and doubts in the eyes of the Court. The media simply stops itself to saying that Court has no right to interfere in the marriage of two consenting adults.

However, they clearly missed out on the contumacious facts and circumstances which led to the marriage intending to defeat the purpose of court proceedings. The marriage is indeed a sham and the NIA investigation would allow the Court to better appreciate the pattern of love-jihad which is prevalent in Southern states.

As for the question of annulling a marriage which doesn’t depend on any pattern, the author believes that the High Courts have a wide range of power and jurisdiction under Article 226. If the circumstances so demand and there is a clear case of misrepresentation and coercion, the Court should indeed annul a marriage (depending solely on the facts and circumstances). The Supreme Court has an opportunity to analyse and hear both sides of the story as it will do and lay down the law which is required to mitigate such sham marriages.

References

[1] The Constitution of India, 1950, Art. 226.

[2] Shafin Jahan v. Asokan K.M., 2017 SCC OnLine SC 925.

[3] Asokan K.M. v. Superintendent of Police, 2017 SCC OnLine Ker 5085.

[4] Shahan Sha A. v. State of Kerala, (2010) 1 KLJ 47.

[5] Bharati Tamang v. Union of India, (2013) 15 SCC 578.

[6] NHRC v. State of Gujarat, (2009) 6 SCC 767; Bahubhai v. State of Gujarat, (2010) 12 SCC 254; Centre for Public Interest Litigation v. Union of India, (2011) 1 SCC 560; Ram Jethmalani v. Union of India, (2011) 8 SCC 1.

[7] The Constitution of India, 1950, Art. 226.

[8] The National Investigation Agency Act, 2008, §6.

[9] Prabhati Nayak Misra, Hadiya Case: SC Directs Kerala Police To Share Probe Details to NIA, August 10, 2017, available at http://www.livelaw.in/hadiya-case-sc-directs-kerala-police-share-probe-details-nia/