As Hadiya gets justice on Women’s Day, will Kerala High Court and NIA apologise?

In a fitting tribute to International Women's Day, Hadiya, the 26-year-old woman from Vaikom, Kerala, whose marriage to Shafin Jahan was annulled by the Kerala High Court in May 2017 and a probe into alleged "love jihad" by the National Investigation Agency (NIA) was ordered by the Supreme Court in August last year, has finally found a modicum of justice. As a three-judge bench of the Supreme Court, comprising Chief Justice Dipak Misra and Justices DY Chandrachud and AM Khanwilkar, set aside the Kerala HC order, reinstating the "annulled" marriage, saying the court cannot interfere in consensual marriages between two adults, the long battle fought by Hadiya and Shafin Jahan has finally seen the rightful end in duo getting united in the eyes of law once again.

The SC bench passed a short order with the operative part released at 2 pm on March 8, 2018, coinciding with Women's Day, in order to make a wider sociopolitical impact. The court categorically said that the State cannot and must not interfere in matters of intimate, private choice, such as marriage, as well as plurality of the social fabric. By stating that Hadiya (formerly Akhila Asokan) was "at liberty to pursue her future endeavours according to law", and that the Kerala High Court "should not have annulled the marriage", the SC bench has batted in favour of a woman's right to choose her life partner, her fundamental rights guaranteed under the Constitution, including right to freedom, right to life and liberty, right to equality, right to religion, as well as the right to privacy and bodily autonomy.

However, the Supreme Court has allowed the NIA to continue its investigations into any matter of criminality, thereby not entirely debunking the allegations of "love jihad", which an earlier bench made note of, ordering the NIA to probe the circumstances of the then annulled marriage. The current SC bench, nevertheless excluded the Hadiya-Shafin marriage from the probe, insofar as the marital status of the two would remain unchanged irrespective of any subsequent findings of the NIA.

While the Hadiya case is a classic example of mixing law with mutable morality of the society, and a grave breach of the fundamental rights of a woman, the points argued by senior counsels Kapil Sibal and Indira Jaising are worth recounting here. The learned counsels pointed out that Hadiya had entered into a valid Muslim marriage with Shafin Jahan, and that she had converted to Islam long before she married. Since every Indian citizen – above the age of 18 if she is a woman and above 21 if he is a man – is guaranteed the fundamental right to marry by Article 21 of the Constitution, within the limit of their personal law, age, religion and prohibited degree of relations. In fact, the right to marry is guaranteed under the Article 16 of Universal Declaration of Human Rights.

Similarly, under Muslim personal law, the right of adults to marry by their own free will and without the intervention of their parents in duly recognized. In case of a Muslim marriage, both parties have to be practicing Islam, above the age of puberty, should have legally offered and acceptance each other as spouses (Ijab and Qubool) in the presence of two witnesses, and with the provision of dower.

Not only did Hadiya and Shafin's marriage correspond with every requirement in the book, it could have been dissolved only by either party within the marital contract, and not by any third party. Only, the husband and/or the wife can initiate divorce proceedings in case of Muslim marriage, which is the only legally valid way to dissolve it. Under Muslim Marriages Act, 1939, a husband may dissolve a marriage by way of a valid triple talaq (no longer instant, as held by SC in August last year), while a wife can initiate divorce proceeding by approaching a family court, as given in the Act. Therefore, not only did Kerala High Court err in pronouncing the perfectly valid Muslim marriage of Hadiya and Shafin as "null and void", it erred a second time by overstepping its judicial brief. The HC in exercise of powers under 226 had no jurisdiction to declare the marriage void in Habeas Corpus proceedings initiated by Hadiya's father, Asokan.

By pronouncing a legal marriage as been "annulled", the Kerala HC tried making it illegal, therefore not bona fide in the eyes of law. That the Supreme Court has set the errant judgment aside is therefore only a matter of relief, as well as a careful attempt not to negate the hard-won personal autonomy of individual citizens guaranteed by Article 21 of the Constitution.

While the SC mas managed to safeguard the right to marry under Article 21, it has nevertheless allowed the NIA to carry out criminal probes into Shafin Jahan's alleged links to Islamic radicalism and conversion programmes, in the name of "love jihad". It's interesting that the narrative of love jihad still looms large despite a positive SC judgment. This flies in the face of actual "conversion" figures from Kerala in the last seven years, published in the Malayali publication Malayalam Manorama, in which persons have embraced another religion, which almost 5000 persons chose to convert to Hinduism, and only 1864 persons chose Islam, while 1496 chose Christianity.

It is in this regard that we need to revisit the arguments presented by the father, Asokan, as well as the Centre, which spoke of Hadiya being "brainwashed", being "psychologically kidnapped", suffering from "Stockholm Syndrome", and more. While the mental health aspect was forwarded by the government that tried proving Hadiya's marriage itself was mala fide, and therefore illegal, those arguments were not only bogus, they catered to the spurious, political malignant bogey of "love jihad". That the Supreme Court had earlier even allowed the NIA to "investigate" the marriage, after the Kerala HC declared it void, was rightly panned, and how. As the current SC bench observed during the hearing, the State must be kept away from personal and intimate matters, such as love, food, bedroom and the kitchen. The Bench had also observed on repeated occasions that the investigating the status of the marriage itself, solemnized through mutual consent between two adults, would set a bad precedent in law.

Even though the court had asked Hadiya to appear in court and give her affidavit, it was subsequently impressed with her clarity of thought and fearless determination to stay married to Shafin Jahan. Her intellectual and spiritual connection with Islam was long made before she met Shafin. As the Supreme Court finally returns the right of a woman to marry whosoever she pleases within the law of the land, the Women's Day celebrations by the Centre, instrumental in driving a wedge through a young woman's private life, look more a mockery of women's rights and liberties, than about actual empowerment.

[Editor's note: This article was first published in The Invisible Lawyers.]