Supreme Court wants to hear Hadiya but allows her forcible confinement to be prolonged

The Supreme Court on Monday said on Monday that it would question Kerala woman Hadiya in the open court on November 27 about whether her marriage to a Muslim man occured with her consent. In May, the Kerala High Court had annulled the marriage.

Hadiya’s case has attracted nationwide attention because Hindutva activists have claimed that it is a case of so-called love jihad – a campaign waged by Muslim men to woo Hindu women in order to convert them to Islam. Hadiya, who was born Hindu, said she converted to Islam willingly before her marriage. But her father, Ashokan, alleged that her former husband Shafin Jahan was conspiring to take his daughter to Syria to fight for the Islamic State group.

He filed a habeas corpus petition in the Kerala Court. The court eventually annulled Hadiya’s marriage and ordered her to return to her parents’s home under police guard.

But on October 3, the Supreme Court wondered how a High Court could annul a marriage using its special powers under Article 226 of the Constitution, which was framed to help the court protect fundamental rights. The annulment of a marriage requires a civil trial.

On Monday, Chief Justice of India Deepak Misra made it clear that the court would decide on the matter only after hearing Hadiya in person. The bench dismissed her father’s plea to conduct the proceedings in camera and ordered him to produce his daughter at 3 pm on November 27.

‘Pattern of indoctrination’

In the course of Monday’s proceedings, Misra asked the lawyers appearing for Ashokan and the National Investigation Agency if there was any legal bar to an adult woman in falling in love with a criminal. The NIA had been brought into the picture by a bench headed by former Chief Justice JS Khehar on August 24, when it asked the agency to investigate whether there was a larger trend of religious indoctrination in Kerala. After Misra as chief justice took over, the court’s position changed. The new chief justice even asked if there was any scope in law for the Supreme Court to move beyond the proceedings in the High Court and order an NIA probe, which was mentioned neither in the petition moved by Hadiya’s husband Jahan nor in the High Court order.

On Monday, the lawyers for the NIA and Ashokan argued that there is material relating “to a pattern of indoctrination” and that the choice of the individual in question “should not be treated as absolute for guiding the jurisdictional spectrum of habeas corpus”. The court refused to accept this. It said it would hear Hadiya in person to determine her position. The court had said on October 9 that consent was the most important determinate factor in the case.

Despite the positive signals in Monday’s proceedings, the fact remains that Hadiya will continue to be under forcible confinement at her father’s home. The Supreme Court in its Monday order did not elaborate on why this should continue and extended the police protection given to Hadiya and her family till the next hearing.

Last week, Rahul Eswar, an activist in Kerala who met Hadiya at her father’s home, released a video of the conversation he had with her. In the edited video, Hadiya said her father was threatening her life. She claimed he was physically assaulting them.

She said:

“You have to get me out. I am sure I will be killed tomorrow or the day after. My father is getting angry, I know. When I walk, he is pushing me and kicking me. If my head or any body part hits somewhere and I die….” 

Eswar said he had not released the entire video because it could cause communal tensions. But whatever was released made one this crystal clear: Hadiya is not living in her father’s house voluntarily.

As a result, it is not clear why the Supreme Court has extended her stay in Ashokan’s home in Kotayam until November 27. Essentially, the court has allowed Hadiya’s liberty to be curtailed for another 28 days despite the fear that she could be put under undue pressure to take her father’s side.