In a major win for Hadiya and her husband Shafin Jahan, the Supreme Court, on Thursday, set aside the May 2017 Kerala High Court order annulling their marriage. The SC has consistently in the last few hearings maintained that Hadiya, a 26-year-old, has the right to make her own choice. Being consistent with their stand, the SC has struck down the Kerala HC’s draconian order.
The SC also observed that the HC should not have annulled the marriage in a habeas corpus petition. However, according to initial reports, the probe by the National Investigation Agency (NIA) will continue into the accusations of ‘love jihad’, but not of this particular marriage.
The SC said that its decision is based on Hadiya’s statement that she converted to Islam out of her own free will. It asked how can the HC annul a marriage between two consenting adults under Article 226 of the Constitution.
The SC read out the operative part of the judgement a little after 2pm, after hearing the case in the first part of the day.
The Bench was headed by Chief Justice of India Dipak Misra, DY Chandrachud and AM Khanwilkar.
During the hearing, the SC bench reiterated that the court cannot intervene in the case of a marriage between two consenting adults. The court also told the NIA that it can carry on the investigation, but it shouldn’t probe into the marriage. The SC also said Hadiya is free to pursue her future endeavours as per law.
“Marriage, plurality and individual choices should be zealously guarded from State intervention,” the bench reportedly said.
The bench also said that however good or bad a marriage is, the HC cannot annul a marriage, saying that “the state cannot be allowed to enter into the marriage whether it approves of it or not.”
Background of the case
In January 2016, Hadiya’s father first filed a habeas corpus petition in the Kerala HC. The court, however, disposed the petition, after Hadiya appeared before the court and said that she wanted to study Islam.
A few months later in August, Asokan filed a second habeas corpus, alleging that there were attempts to transport Hadiya out of the country to join Islamic terror outfit ISIS.
While this case was under the consideration of the court, Hadiya appeared for a hearing in the last week of December 2016, along with Shafin, who she said was her husband. This prompted the court to order a probe on Shafin and led to the subsequent annulment of their marriage in May 2017.
Hadiya was then sent to the custody of her parents and was put under house arrest, with no access to a telephone or newspapers. She was also denied access to people.
After the Kerala HC annulled Hadiya’s marriage to Shafin Jahan in May, the latter moved the SC with a special leave petition against the HC order.
A bench of the SC then ordered an NIA probe into the case.
Appearing at the apex court in November 2017, Hadiya had said that she wanted to continue being a Muslim and that she wanted to go with her husband Shafin. However, the court had then sent her back to her college in Salem to continue her studies, without commenting on whether the HC can annul a marriage.
Hadiya then reiterated her stand in an affidavit filed at the apex court in February, and told the court that she converted and married Shafin of her own free will. She countered her father Asokan’s allegations that she was indoctrinated. Despite this, Asokan in his latest counter affidavit filed at the court last week came up with a new “theory” behind Hadiya’s conversion to Islam.
He had been accusing Hadiya’s friends Jaseena and Faseena and their father Aboobacker for having “misled” Hadiya. According to Asokan, Hadiya came in contact with one Shanib from Malappuram through an internet chat in 2015. Shanib in turn introduced Hadiya (then Akhila) to his elder sister Sherin Shahana who was already married to Fasil Musthafa, who offered to make Hadiya his second wife, and take her to Yemen.
In February, Sainaba told the court that Hadiya converted of her own will and not all conversions were due to indoctrination. In her affidavit, Sainaba argued that the allegations against her were baseless, and said that this was against the constitutional principle, which guaranteed freedom of religion as a fundamental right.
Sainaba was responding to the notice over a plea by Hadiya’s husband Shafin Jahan who challenged the Kerala High Court order annulling his marriage.