On Monday(November 27th) a three-judge bench comprising of Chief Justice of India Dipak Misra, Justice D.Y. Chandrachud and Justice A.M. Khanwilkar ordered the release of Hadiya from house arrest by her parents, and directed that she be allowed to continue her house internship to become a homeopathic doctor at Sivaraj Homeopathic Medical College in Salem as requested by her.
The bench on Monday was hearing the case of Hadiya in a petition filed by Shafin Jahan against the decision of the Kerala High Court to annul the marriage of Shafin Jahan and Hadiya and ordering her custody to her parents. The court had ordered the appearance of Hadiya before the bench during the last hearing.
Senior Advocate Shyam Divan, appearing on behalf of the respondent, Hadiya’s father Asokan, began submissions by making an application requesting relooking at its previous order for the questioning of Hadiya to be in open court. It was suggested that it would be beneficial if it were to be conducted in-camera.
It was submitted that there were “forces behind the curtain”, and counsel indicated that there was a presence of an organisational support that was influencing the outcome in this case. Respondent counsel has alleged that the decision to convert was taken by Hadiya due to indoctrination and because she had been brain-washed.
The counsel for respondents also submitted the transcript of a voice clip of Abdul Rasheed, an ISIS recruiter, in evidence of his association with the Popular Front of India (PFI), a fundamentalist organisation to which Shafin Jahan is alleged to be connected, according to the respondent.
The Additional Solicitor General Maninder Singh appearing on behalf of the National Investigation Agency (NIA) urged the bench to review the report filed by the NIA. It has been contended by the counsel of the petitioner that the actions in pursuance of the investigation by NIA is illegal since it wasn’t under the supervision of any judge, as directed by the order of the Supreme Court in August. Petitioner also instituted contempt petitions before the Court against this.
Senior Advocate Kapil Sibal and Senior Advocate Indira Jaising appearing on behalf of Hadiya highlighted the personal autonomy of Hadiya, and urged the bench to hear her side of the story, and treat her as the adult she is, with a point of view. Senior Advocate Sibal proceeded to question the applicability of parens patriae, stating that it applies to minors and lunatics. It was urged on behalf of Hadiya that she must be heard in open court and if the bench wished to ask further probing questions it could be done in-camera.
Justice DY Chandrachud raised a very important question which will have an impact on similar cases in the future- at what stage can a court venture into whether the autonomy of an individual can be probed. What is the threshold at which the Court must step in?
After much discussion by the Bench on whether to go into material produced by NIA first or interact with Hadiya first, it was finally decided that they would interact with her. Senior Advocate V Giri, appearing on behalf of the State of Kerala, was given the duty of translating the responses, since she was uncomfortable with English.
The Bench questioned her on her schooling, work and personal life she was pursuing before being put under house arrest. On being asked her dreams for the future, Hadiya submitted that she wants her freedom. She also expressed her desire to continue her education, but not at the State expenses since as her husband is taking care of her.
The bench, thereafter, ordered that she be allowed to continue her studies as she wished to, and proceed to complete her house surgeoncy at at Sivaraj Homeopathic Medical College in Salem. It was directed that the State of Kerala would make arrangements for her travel to Salem while being accompanied by a police woman constable in plainclothes. The Court also directed for the NIA investigation to continue.
The matter is next listed for hearing on January 26th.