Why Hadiya's voice has remained unheard in Kerala love jihad case
The Hadiya case, which has seen several twists and turns, might finally start moving towards closure beginning today (November 27) in the Supreme Court.
The closure would come almost a year after the Kerala High Court passed certain contested observations on December 21, 2016, in the case that involved Hadiya's conversion to Islam and marriage. This resolution will also hopefully end Hadiya's six-month-long ordeal that has seen her undergoing virtual house arrest, cut off from the rest of the world.
The case has unfortunately been used by vested interests to advance their political agendas in Kerala. The RSS/BJP, on one end and, the Popular Front of India (PFI)/Social Democratic Party of India (SDPI), on the other, have used this case to advance their cause and polarise public opinion.
For instance, the case was solely responsible for SDPI winning 8,000-plus votes and coming third in the Muslim-majority Vengara by-poll as their candidate is one of the lawyers representing Hadiya. On the other hand, the Sangh organisations have used the case to stoke mutual animosity among communities in the state.
But before a judgment is passed in the case, it is necessary to understand what led to that logic-defying order of the Kerala High Court in May.
Shocking judgment
The case was already adjudged in favour of Hadiya in early 2016 after her father Ashokan's first habeas corpus petition was dismissed on January 25, 2016, when the court found that Hadiya was not in illegal confinement as he alleged.
Hadiya (Akhila Ashokan then) had turned up in the court and stated that she had converted of her own volition and had been practising the religion for almost three years until that point. The court also granted visiting rights to her parents.
The case that led to the unfortunate high court verdict in May was a result of a second habeas corpus filed on August 8 by Ashokan claiming that there was a conspiracy to take Hadiya to Syria and he was scared for her safety. A phone transcript of a purported conversation between Ashokan and Hadiya where she is heard saying she had initially deliberated going abroad but no such plans were made got leaked and widely circulated on social media. After passing an interim order, the court on September 27 sent her back with Satya Sarani's AS Sainaba, who had been her guardian since early 2016.
In November 2016, Ashokan approached the court again with an apprehension that Hadiya was living with Sainaba without completing her house surgency, which is important for her to practise as a homeopathic doctor.
In the next hearing on December 19, the court asked Hadiya about her pending house surgency and Hadiya's lawyer contended that she be allowed to pursue it from the college in Salem, from where she completed her degree. The court accepted this and also Hadiya's demand that her certificates in her father's possession be handed over to her.
The court posted the case for December 21 and asked both Ashokan and Hadiya to be present on the date in person. This is where the case turned upside down. On December 21, Hadiya turned up in court with a man, Shafin Jahan, who was introduced as her husband.
The court expressed displeasure over the alleged attempt to hoodwink them and sought to know when the "arranged marriage" took place. The lawyer told the court that the wedding took place on December 19, the same day the court was conducting a hearing in the case. The court interpreted it as an attempt at "subterfuge" and concealment/withholding of facts from it.
If this googly wasn't served by Hadiya's guardian (backed by the PFI) on December 21, the matter would have ended there and Hadiya would have been sent back to the college hostel. Instead the attempt to bolster their case and liberate Hadiya from her father's hold turned out to be a misadventure as the court saw it as a bid to hoodwink them. The court now sent her back to a hostel in Ernakulam till the case got adjudicated and barred her from using mobile phones in the interim. The court simultaneously ordered a police inquiry and the terms of reference included a report on Shafin Jahan's antecedents.
The police told the high court in January 2017 that Shafin Jahan had links with Sathya Sarani and that he was also an accused in a criminal case. He also was a member of a WhatsApp group named "Thanal" run by the core committee of the SDPI, according to the police report. It also came to light that Shafin Jahan had sympathised with the Popular Front cadre, who chopped off the hands of professor TJ Joseph, on his Facebook page.
The court also found the antecedents of AS Sainaba suspect after she emerged as a common factor in a case filed by another girl (Athira).
The Kerala High Court of May 24 has to be seen in this context as it concluded that this was part of an organised conversion racket and Shafin Jahan was "only a stooge who has been assigned to play the role of going through a marriage ceremony".
The court's sensational verdict nullifying the marriage and sending Hadiya to her father's custody still cannot be justified in a country where individual freedom is paramount and courts can merely interpret the law. (And not interfere in personal choices)
What happened next
When Shafin Jahan filed a special leave petition in the Supreme Court, the bench of then Chief Justice JS Kehar took the high court observations seriously and ordered an NIA probe in August. But a new bench under CJ Dipak Mishra saw the case differently and wondered how the HC could have declared Hadiya's marriage null and void. On October 30, the Supreme Court ordered Hadiya to be produced before it on November 27 after it was brought to their notice that she was being held in confinement against her wishes.
When Shyam Divan, arguing for Ashokan pointed to the "antecedents" of Shafin Jahan, the court also made the verbal observation about how a major cannot be prevented from marrying a criminal if that was the case.
Cut to November 27
Hadiya is most likely to repeat in the court what she said to the media while being flown from Kerala to Delhi - that she chose Islam of her own volition and she be allowed to go with Shafin Jahan. But after Hadiya is heard, the court will also go through the status report filed by the NIA and hear Ashokan's argument as well before taking a final call. It is likely that Ashokan's lawyers will make a last-ditch attempt to brand Hadiya as mentally unstable though it is unlikely to work.
A couple of things have to be said. The Kerala government looked the other way even when it emerged that Hadiya was being lodged in solitary confinement against her wishes. The State Women's Commission and the State Human Rights Commission didn't act either. When the high court had only ordered Hadiya be sent with her father and police protection be given to them, who is responsible for the alleged violations of her human rights?
Media correspondents posted in the vicinity of Hadiya's home have reported the steady stream of visitors from the Hindutva groups, including the multiple visits of BJP president Kummanam Rajasekharan into Ashokan's home over the past six months. Ashokan also saw to it that none of the visitors he disapproved of got to meet Hadiya. That also included the media.
One can only hope that Hadiya will finally get some justice after her six-month-long ordeal.