Of Akhila and Hadiya
The "love jihad " case in Kerala is deeply problematic
- Published 21.08.17
At first glance, the special leave petition before the Supreme Court of India in the matter of Shafin Jahan (petitioner) and Asokan K.M. & others (respondents) may seem like a page out of a hackneyed screenplay.
Shafin Jahan, a young man from Kerala, knocked on the doors of the country's apex court seeking freedom and justice for his lawfully wedded wife. His petition claimed that she had been placed "under house arrest" by her father, Asokan K.M., against her wishes and requested the judges to direct the concerned authorities to produce her before the Hon'ble Court.
In real life as well as on celluloid, we have all witnessed umpteen cases of young couples defying their parents' wishes to marry outside their community and irate fathers doing everything to stand in their way. Such cases usually get resolved through the intervention of family and friends. Sometimes, the rift lasts for years before time eventually effects a reconciliation.
But nothing is that simple any more in the world we now live in. Not even the most creative Bollywood scriptwriter could have imbued this tale with so many layers of intrigue and suspense, interwoven it with so many strands so dear to the ruling saffron ideology, extended the cast of characters to so many public institutions and transformed one woman's story into a lurid melodrama about Islamic terror and "love jihad".
The judges of the Supreme Court could have stepped in to inject a measure of sobriety in the matter and untangled the plight of the woman whose case was before them from the tangled skein of conspiracy theories.
Oddly, the bench of the chief justice, J.S. Khehar, and the judge, D.Y. Chandrachud, refrained from doing that. Rather, the court's order on August 16 directing the National Investigation Agency to probe the allegations that Hindu girls in Kerala are being converted to Islam by shadowy organizations linked to the Islamic State has only provided fresh ammunition to the forces ranged against individual choice in matters of faith and matrimony. Just as the Kerala government's intriguing acquiescence to the order has eroded the federal principle by allowing a Central agency to take over an investigation being undertaken by the state police so far.
Lost in the din is the voice of the person at the centre of the entire controversy - a woman called Akhila who chose to become Hadiya. Her story deserves to be heard. According to the petition, Akhila was a student of the Shivraj Homeopathy Medical College, Salem when she struck up a close friendship with a Ms Jaseena and learnt about the tenets of Islam. The principles of Islam appealed to her and she decided to convert to the religion and call herself Hadiya. As an adult, she was free to make that choice. Since her parents were strict Hindus, she knew they would not accept her conversion. Therefore, she did not return home and informed her parents of her decision.
Her father reacted by filing a writ of habeas corpus alleging that Akhila had been converted to Islam against her free will.
Significantly, the Kerala High Court disposed of the matter on the grounds that Akhila had voluntarily left the home of her parents and directed her to stay at a hostel run by Markazul Hidaya Sathyasarani Educational and Charitable Trust in Malappuram district of Kerala where she continued studying.
Her father did not give up. He filed another habeas corpus petition and this time alleged that his daughter was being "radicalized" by the institution and a lady called Sainaba who had links with the Islamic State and other extremist organizations. During the hearing of the case, Hadiya asserted that she had voluntarily converted to Islam and professed her faith in the religion. The high court bench once again iterated that there was no proof of forced conversion.
It was while the hearings were on that Hadiya chose to get married by placing an advertisement on a matrimonial website to which she received more than 50 responses. Shafin Jahan came in touch with her following this advertisement. After meeting with his family, the two decided to get married and did so under Islamic law on December 19, 2016.
The marriage seems to have changed the attitude of the high court. It then began taking seriously the father's complaint that Hadiya had been brainwashed by radical Islamic groups and was being married off to a man with suspected terrorist links. Shafin Khan is openly a member of the Social Democratic Party of India, the political arm of the Islamist outfit, Popular Front of India, and an active member of its social media group.
Taking these facts into account, the Kerala High Court on May 24, 2017 declared the marriage of Hadiya and Shafin null and void and "of no consequence in the eye of the law". The court reached the conclusion without hearing Shafin and in spite of Hadiya asserting her intention to remain married to him. Hadiya - who the court only refers to as Akhila - was sent back to stay in her parental home.
In his petition to the Supreme Court, Shafin challenged the high court verdict that annulled his marriage and handed over an adult woman to her father's jurisdiction against her wishes. In spite of the plethora of allegations and innuendoes, no case has been proved against Shafin so far and he remains a bona fide citizen of India.
It is also remarkable that a man with so-called terrorist links should approach the Supreme Court with a cogently argued petition seeking relief for his wife. The petition points out, for instance, that the high court erred in describing the marriage as a case of "love jihad". In this case, "...the girl had converted of her own free will and not in order to marry the petitioner. It was only later that they had met through an online marriage website and decided to get married," it said.
The central tenet of the petition is that the high court verdict violated "the right of a consenting adult to profess the religion of his/her choice and marry an individual of her choosing. Both rights falling under the purview of Articles 21 and 25 of the Constitution".
In this context, the petition also referred to the Lata Singh versus State of Uttar Pradesh case of 2006 when "this Hon'ble Court in similar circumstances has held that in a democratic, secular nation like ours, the choice of whom to marry lies with the individual alone and the parents cannot coerce an individual against marriage".
The petitioner's lawyers, including Kapil Sibal and Indira Jaising, urged the Supreme Court to first call Hadiya and ascertain her views on the matter. The chief justice, Khehar, likened her to a child and referred to the Blue Whale Challenge, an online game that has led a few teenagers to take their lives.
That analogy seems quite inappropriate. Hadiya is over 25 years old, a qualified doctor, and a woman with a mind and agency of her own. If she or her husband is proved to have links with terrorists, they can be prosecuted on those grounds. But to annul the marriage between two consenting adults and force an adult woman to follow the dictates and religion of her father would be gravely regressive.
The charges of "indoctrination" and "brainwashing" are also problematic. After all, every individual who chooses a new path - be it political, religious, or ideological - does so after indoctrination of some sort.
The Supreme Court bench agreed to hear Hadiya's version, but only after the National Investigation Agency submits its findings. It also agreed that in the interest of fairness, the findings would be vetted by a retired apex court judge.
No one can tell whether Hadiya's faith and independence will hold up after such enormous pressure from family, society and the might of the State. But one thing is for sure. If Hadiya had been born Muslim, had chosen to be indoctrinated by Hindutva zealots, decided to marry a gau rakshak and changed her name to Akhila, her fate would have been very different indeed.