This article has been written by Janardan Thorat.

It has been published by Rachit Garg.

Introduction

Shafin Jehan vs. K. M. Ashokan’s case is also known as Hadiya’s case. This case pertains to the marriage between a Hindu (girl) and a Muslim (boy), also known as the “love jihad” case, a controversial term coined by fringe Hindu groups to describe what they claim is a conspiracy by Muslim men to lure Hindu women into marriage. The judiciary was further challenged by a well-educated and knowledgeable Hindu girl who voluntarily married a Muslim boy and voluntarily converted from Hinduism to Islam. The case was seen as a blow to individual freedom and independent thinking.

Background facts

  1. Akhila, when pursuing her bachelor’s degree at Salem, was impressed by her two college mates Faseena and Jaseena and their “timely prayers and good character”. 
  2. In January 2016, Akhila left her home and joined a course on Islam at “Therbiathul Islam Sabha”, a Kozhikode Islamic study center, as an ‘external candidate’ after filing an affidavit that she converted on her on accord. At Satya Sarani, she stayed with A.S. Zainaba, president of NWF and member of its parent radical Islamist organization PFI and SDPI. 
  3. In February 2016, Akhila’s father- Ashokan filed a missing person’s case at the local police station. Akhila was in contact with the “Sathya Sarani” organization which placed Zainaba in charge of Akhila during this period, and she changed her name to Hadiya. At the High Court of Kerala, Hadiya’s father filed a habeas corpus petition alleging that Satya Sarani has been involved in “forced and illegal” religious conversions. The court dismissed Ashokan’s petition and let Hadiya continue learning Islam and live with Zainaba, observing that she was not in illegal confinement.
  4. Following this, Ashokan filed a second petition in August 2016, alleging that Hadiya is likely to be transported out of the country; i.e. violence-hit areas of Afghanistan or Syria by marrying a Muslim boy; who would take her away from her parents, so that her father would never be able to visit his daughter.  The High Court passed an interim order to keep Hadiya in surveillance to ensure that she was not taken outside of India. On 19 December 2016, the court directed Hadiya to move to the college hostel in Salem to complete her medical studies. 
  5. On 21 December 2016, Akhila appeared before the High Court accompanied by “a stranger.” This was nearly a year after she had left home and formally converted. She appeared in court with a man named Shafin Jehan, who she said she had married. Shafin Jehan is an active member of SDPI and allegedly also a member of the radical Islamic outfit PFI, with 4 criminal cases against him. In May 2017, the High Court annulled Hadiya’s marriage with Shafin, and sent her to her parents’ house.
  6. This decision was taken by the High Court on grounds of the report submitted by the National Investigation of India (NIA). The report said Hadiya was a victim of indoctrination and psychological kidnapping, and the marriage arranged by a matrimonial website claim was completely “bogus”.  As per NIA’s report in the “love jihad” case, the marriage proposal of Shafin Jahan had come through Muneer, Shafin Jehan’s friend, during August 2016.
  7. The High Court of Kerala then handed over Hadiya’s custody to her father, Ashokan, arguing that “As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married.” High Court judges did not even consider Hadiya’s role. Because she never asked or agreed to stay with her parents. The court annulled her marriage with the observation that she was a “weak and vulnerable girl capable of being exploited”. Court also said in its order that “Shafin Jehan 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.”
  8. Siva Sakthi Yoga Centre, a Hindu centre that visited Hadiya upon Ashokan’s request, and whom Hadiya alleges “tortured” her and tried to re-convert her. There have been numerous other allegations of torture at the hands of Siva Sakthi Yoga Centre, where Hindu women are forced by their families to go and reconvert to Hinduism.
  9. Jehan appealed the Kerala High Court order, and moved to the Supreme Court. In November 2017, the Supreme Court of India directed Hadiya to resume her internship, and that she was free to meet whomever she wanted.
  10. On 23 January 2018, the Supreme Court continued hearing the Hadiya Marriage case. When the Counsel for Mr. Ashokan (Hadiya’s father) argued that the circumstances leading to the marriage must be investigated, the court emphasized that Hadiya’s marital status could not be looked into by the Court. On 8 March 2018, Hadiya’s marriage was restored by the Supreme Court. 
  11. What is disturbing is the decision of the Supreme Court in this case. The Apex Court had a three-judge bench, which set aside the high court’s decision and said that the Kerala High Court cannot use Section 226 to annul a marriage, especially to declare an adult marriage.
  12. The verdict was handed down on April 9, 2018. The bench directed the NIA to inquire into the circumstances of Hadiya’s marriage and submit a report. This was done by a bench headed by Chief Justice of India Khehar, but he soon retired, leaving CJI Mishra to take over the case. He realized the difficulties of the NIA investigation and realized that it had little purpose. He therefore did not call on the NIA to submit a report during the mass hearing. His investigation was completely erased from the record.

Identification of Parties 

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Petitioner: Mr. Shafin Jehan. 

Respondents: Mr.KM. Ashokan; The Superintendent of police, Malappuram; The SP Of Kottayam; Inspector General of Police, Kerala; National Investigation Agency, Markazul Hridaya; Sathya Sarani Educational and Charitable Trust, Kerala ; AS. Zainaba, Kerala.                                                                                                  

Main Issues before the Court

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  1. Whether the High Court has the authority to nullify a marriage of an adult under Article 226 (Writ jurisdiction) of the Indian Constitution.                                                                
  2. Whether an Adult has his/her right to choose her life and her beliefs?                                                      
  3. Whether the Parens patriae doctrine is more important than the Right to freedom of choice, freedom of thought and life in the Indian Constitution? Whether women or men have to take prior approval from their parents if they are above the age of twenty-one? 
  4. Whether the petitioner had a right to file a writ petition of Habeas Corpus before the High Court?
  5. Whether a National Investigating Agency probe ordered by the Kerala High Court was necessary to annul marriage of two adults & conversion (as per this case)?

Arguments by the Petitioner’s side

  1. The habeas corpus petition was only meant for wrongful confinement and annulment of the marriage was not within the powers of a writ court ( pointed out by Mr. Kapil Sibal)
  2. The arguments further came when Mr. Kapil Sibal argued that an adult has the say to decide what she had to choose in her life. 
  3. He argues that the NIA’s report cannot be blindly taken up and looked upon as they are of no importance in this case, as it discusses the moral and social background of the people involved in the case.
  4. Mr. Kapil Sibal stressed on individual autonomy as the main factor to be considered in the case.

Arguments from Respondent’s side

  1. Mr. Shyam Divan argued the High Court can take such jurisdiction under Article 226 of the Indian constitution to provide justice in an unusual case with an unusual situation.
  2. He argued that Akhila (Hadiya) was a vulnerable adult, who could be brainwashed. The marriage was a ploy to take Akhila out of the jurisdiction of the High Court, which was practicing the doctrine of parens patriae, and traffic her out of the country.
  3. He argued that this case had extraordinary facts and the court should take its extraordinary jurisdiction to provide justice to Mr. KM. Ashokan. He talks about Ms. Zainaba and her “illegal conversion center”, i.e. Sathya Sarani. He also argued that after getting her married, the marriage was kept a secret while court proceedings in high court went on.

Judgment

The Apex Court, in this case, set aside the judgment ruled by the Kerala High Court declaring it null and void the marriage of Hadiya and Shafin Jehan. The marriage was restored by the Supreme Court, and the court held that the investigation led by NIA to probe the marriage and any other criminality shall continue but there should be no interference between the marriage. A 3-Judge Bench comprising the Chief Justice Deepak Misra, Justice A.M. Khanwilkar and Justice DY Chandrachud delivered the judgment and removed Hadiya from the custody of her parents as it was against her will. The court also sent her back to the college after she had expressed her willingness to continue her studies. The case has shown us the importance of freedom of choice and the right of liberty allowed to every legal adult regardless of their sex, religion or race, etc.  

The judgment delivered by the Supreme Court was apt according to the present situation in society. The marriage between Shafin Jehan and Hadiya was valid as the court did not find any ulterior motive behind the marriage. The allegations made by the father of Hadiya were erroneous and had no relevance with the marriage. The constitution of India provides liberty and freedom of choice to every individual. In the case of Lata Singh v. State of Uttar Pradesh, it was observed by the Supreme Court that the right to marry is a component of the Right to life enshrined under Article 21 of the Indian Constitution. 

Thus, it is rightly said that social values, faith and morals have their space in society but they are considered above the Fundamental rights enshrined under the Indian Constitution. The said freedom is constitutional and a human right. In the case of Bhagwan Dass v. State (NCT of Delhi), the court averted the social evil in society such as Honour killings and love jihad and stated that these practices are a reflection of a feudal mindset which is a blot on the nation. The duty of the court is to protect the individual’s fundamental rights and not to shorten the rights except under certain circumstances. Everyone has a freedom of choice of religion and faith which is expressly enshrined under the Indian Constitution.

Conclusion

Today, even after 75 years of independence, we are judging people depending upon caste & religion which was created by our ancestors, instead of addressing each individual as human being. And most of the women are still fighting to get their basic fundamental rights in our country. This is very regretful and very much disappointing.

Though the concern of a parent towards their children is valid. In this case, Hadiya is safe and secure in our country just because of her parents as they had brought this issue to the public eye. Her father keeps on reiterating that he was not against any religion or conversion but opposed a vicious campaign that pushed innocent girls to volatile areas after conversion. Hadiya is the only child of Ashokan who lives under police protection due to threats from some fundamentalist outfits.

Shafin Jehan v. K.M. Ashokan is also the appropriate example of “patriarchal autocracy and possibly self-obsession with the feeling that a female is a chattel”. The judgment of the High Court reflects the patriarchal system in the society which is sometimes a slur on the nation. The judgment showed that women are vulnerable in society. Thus, the Supreme Court rightly quashed the order of the High Court and passed the judgment in the favor of Hadiya where she has freedom of choice of religion and faith. 

References

  • Shafin Jehan V KM Ashokan files 357-2018
  • Lata Singh V State Of UP 2006 SCC 475
  • Soni Gerry V Gerry Douglas 1606-2017        
  • Gian Devi V superintendent, Nari Niketan, Delhi 1976 SCC 234
  • Girish V Radhamony SC 2002-2-147      
  • Bhagwan Dass vs. State (Nct) Of Delhi                                                                                                                                                                                           
  • Kanu Sanyal V District Magistrate, Darjeeling 1974 AIR 510, 1974 SCR (3) 279.

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