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Hadiya Case and analysis on judicial overreach of Supreme Court Order

 

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Kamal Ghotra

Overview

Hadiya, a homeopathy doctor, had married Jehan on December 19 last year. Two days later, the Hadiya’s father – ex-serviceman KM Ashokan – filed an affidavit before the high court alleging that his son-in-law was involved in three criminal cases.The Supreme Court had directed the National Investigative Agency to discover the information into the case of annulment of marriage between a Muslim man and a Hindu woman (who had converted her religion into Islam) by the Kerala High Court who also described this case as ‘love jihad’. The apex court has also ordered that the investigation will be carried under the supervision of the retired apex court Judge R V Raveendran. The bench’s order came after Kerala-based 27 years old Muslim man Shafin Jahan challenged the annulment of his marriage to Akhila alias Hadiya by the Kerala High Court on May 24.

[1]Facts of the Case:-

The facts of the Case are that the 24-years-old Hadiya, who was staying with her friends in Malappuram, married Jahan on December 19, 2016. Both were introduced to each other through a Muslim matrimonial website in August 2016. Two days after their Marriage, Hadiya was asked to appear before the court in a habeas corpus petition filed by her parents.

[2]Case History:-

 Hadiya’s parents approached the High Court by alleging that her daughter had forced for conversion. Hadiya, when appeared in the court said that she had converted to Islam on her own wish. Her father, K M Ashokan, who is an ex-serviceman, alleged that there was a “well-oiled systematic mechanism” for conversion. The main point to be noted that the marriage happened while the petition was pending in the court.

Then, the Kerala High Court sent Hadiya to a hostel in Kochi. But Hadiya was not allowed to meet anyone. Jahan, who had been working in Muscat, had to quit his job to take part in the Court proceedings. Meanwhile, the high court had directed the police to investigate the whole matter. During the investigation, the police found no evidence that could link Jahan with any criminal activity. But however the report came forward that Jahan had been the admin of a WhatsApp group called ‘SPDI Keralam’. He was also in another group called ‘Thanal.’ Mansy Buraqui, who was arrested in connection with the Islamic state module, was also a member of the two mentioned groups. In his defence, Jahan said that Buraqui was removed from the groups soon after his support for the Islamic State was revealed.

After this, the Kerala High Court in its judgement while declaring the marriage to be void said that, “Marriage being the most important decision in her life and that can only be taken with the active involvement of her parents. However this marriage is considered to be a void. And her husband has no authority to act as the guardian.”

 The court then granted Hadiya’s custody to her father and also directed the Kottayam district police superintendent to provide them protection.

Jahan, in the meantime, decided to challenge the judgement and approached the Supreme Court. The apex court then directed the state police to share its investigation reports with the National Investigation Agency. The NIA’s involvement is necessary to ascertain if this is really an isolated case or is there something more. Jahan was unhappy with the involvement of NIA, and state that it amounts to distrusting the police. The Supreme Court rejected his claim and said that the purpose of involving NIA on the first day itself was for neutral and unbiased assistance.

Hadiya’s husband tries to meet her but Hadiya’s father didn’t allow him. Hadiya’s father said- he will talk only after the Supreme Court delivers its verdict. In a breaking voice, he said, “I am fighting for the custody of my only daughter. I won’t allow anyone to meet her.”

 

[3]Case Analysis on judicial overreach of Supreme Court Order:-

Hadiya’s husband had filed a Special Leave Petition before the Supreme Court, challenging this decision. He had stated that the marriage was annulled without any legal basis. And had submitted that the order is against her fundamental rights and should strike down.

The Supreme Court bench of the chief justice J.S Khehar directed the NIA to investigate the case under the guidance of Justice R.V. Raveendran. Kapil Sibal, who is representing Jahan, expressed doubts about fairness of investigation, if it is entrusted to NIA. There was an agreement on justice Raveendran, when the bench’s initial proposal of justice K.S.Radhakrishnan who was a former Supreme Court judge was mooted by the bench, because he knew Malayalam and the documents of the case are in Malayalam. But Jahan request was that the supervising judge be from outside Kerala, so that he is free from local pulls and pressures. But the bench and the counsel felt that NIA would not conduct a fair investigation without the supervision of a neutral judge of justice Raveendran stature is itself an expression of no confidence in it. Accordingly, the central government has to pay justice Raveendran a consolidated fee Rs.1 lakh for a sitting with NIA at Banglore. The bench made it very clear to the parties that before hearing the case finally on merits it would require the presence of Akhila as the court did not want to use her assumed name, Hadiya indicating that it did not approve of her conversion. The bench then posted the matter for the further consideration after the final investigation report is taken place on the record of the case. That the bench would meet Hadiya before a final decision would suggest that the investigation report is not binding on the bench if Hadiya is likely to contradict it during her interaction with the bench. That would be construed as a reflection on the fair investigation which is to be conducted by NIA, under the supervision of judge.

[1] http://www.hindustantimes.com/india-news/sc-directive-to-nia-brings-kerala-love-jihad-case-back-in-spotlight/story-g5wwFbzny2CrNZWhDLOiGI.html

[2] http://www.livelaw.in/hadiya-case/analysis/

[3] http://www.livelaw.in/scs-unusual-direction-hadiya-case-triggers-concerns-judicial-overreach-analysis-sc-order/

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