At the outset, I would like to state that I am a feminist and also a proud crusader of human rights. However, to turn one’s back on ‘reason’ and deliberately thwart the due course of law (albeit, sometimes seemingly unreasonable), is not a concept I can stand for. We have a wide array of spheres in which the nuances of gender inequality and undue infringement of personal rights stare us in the face, but to use this humble cause as a fig leaf to conceal ineffectual arguments is infuriating in its absurdity.
This disclaimer, if you may, comes in light of my contrary views on the topic of Hadiya’s gender obstructing her justice. Admittedly not an alien concept, in the instant case, the ammunition is being misfired, the arguments misdirected. Perhaps, in a standalone case of 3rd party marriage annulment or parental custody of a female sufficiently beyond the ‘age of majority’ boundary, Indira Jaising’s (adv. For the petitioner, Shafin Jahan in the SC appeal) incendiary feminist remark may have been more apt.
However, it is pertinent to note that the ongoing case and the conjecture it is steeped in is neither singular nor nascent. With a case history that spans across the better half of two years, apprehensions and appeals that vary in degree and legality, and an ever-changing cast of main and supporting roles, a one dimensional consideration of the case is hardly fair. Akhila Asokan, a now 25 year old female student of homeopathy, hailing from Kerala but studying in Tamil Nadu, has been the subject of much dialogue and discourse in the recent months. A rather dramatic series of events including but not limited to religious conversions, influential friends, disappearing acts and shady marriages, have caused a wave of rising tempers and flying allegations across the country. Through this article, I aim to dissect the various directions meted out by the concerned courts, their validity and the justification behind them.
The decision of the Kerala HC, to annul Hadiya’s marriage with Shafin Jahan, subsequently upheld by the Supreme Court in response to Shafin Jahan’s appeal has been heavily criticized as one overstepping the authority of the court. It has been said that an annulment cannot be asked for by a 3rd party in any case barring those including a minor, a mentally incapable party or an already married party. At this point I would like to shed light on the fact that the petition filed by KM Asokan, father of Hadiya, was in fact, a writ of habeas corpus and most definitely not one to annul her marriage. The decision to annul the marriage was the discretion of the court based solely on the suddenness and suspicion that surrounded it. The annulment in no way prohibits the union of Hadiya and Shafin, but merely stagnates a situation that otherwise throws a wrench in the ongoing case. The court was understandably infuriated at the concealment of information by the litigants, including Hadiya, her self-appointed guardian Sainaba, or their legal representative in the court, despite the court having heard the same case on the day of the marriage itself. It may be said here that the personal life or marriage of a woman is not the court’s business, however when the marriage is a means of overreaching the jurisprudence of the court by effectively placing Hadiya in the custody of an otherwise unknown stranger to the case, Shafin Jahan, is in itself sufficient grounds for the court to direct a temporary stoppage of said union. The court didn’t stop here; they justified their decision by ordering an inquiry by the NIA into Shafin, the newest player in this legal logomachy.
This brings us to yet another aspect of the case. The NIA, easily the highest investigative body in the country unearthed several findings that create reasonable doubt that Jahan may be party to the original case. He is part of SDPI (Social democratic party of India), a radical arm of the PFI in Kerala. Direct links have been found to exist between this party and Sathya Sarani, the institution that facilitated the conversion of Hadiya to Islam and handed her over to Sainaba, the 7th respondent in the SC case. Additionally, Sathya Sarani has apparently been previously involved with 7 other illegal conversions, with Sainaba already having been accused in another case in which the detenue stated that Sainaba’’ advised her to marry a Muslim, so as to avoid any interference by the court’’.
Shafin Jahan was also found to be accused in a criminal case in relation to unlawful assembly, rioting, etc. This, although used against him by the counsels for K.M. Asokan, does not sway the decision, since as stated by CJI Dipak Mishra, there is no law in the Indian Judicial system that bars the marriage of anybody to a criminal.
In the accusations of illegal conversions, brainwashing and coercion made against respondents, the burden of proof lies with the petitioners, however the findings of the NIA show reasonable cause of the existence of some organizational backing and though cannot explicitly declare Hadiya as mentally incapable, it does point to possible lack of decisional autonomy on her part.
This uncertainty of decisional autonomy forms the very crux of the matter. It suggests the puppeteering of Hadiya by some external agent and thus makes her capable of qualifying for the ‘Parens Patriae’ juridical responsibility of the apex court. The principle of Parens patriae grants the SC the authority to assume a parental role and ensure the security, fair treatment and well-being of a citizen within its ambit of jurisdiction. Subsequently, the court entrusted Hadiya to her parent’s custody. Herein, to draw a distinction between parental custody and house arrest is vital. The court can be held accountable only as far as its direction for her to live with her parents and not for the complete isolation from society that she has allegedly faced. This unimaginable violation of Hadiya’s rights therefore has been at the hands of her parents coupled with the multitudinous national and regional political parties trying to further their propaganda and solidify their ‘fan-base’, if I may. Although KM Asokan is an active member of Kerala’s CPI-M, the local BJP- RSS amalgam, amidst cries of ‘Hindutva’ and ‘love-jihad’ are responsible for the unbidden screening of Hadiya’s social interactions and the subsequent hellish injustice she has allegedly faced. Despite their clear motive of manipulating the political zephyr, these parties have been indulged by Hadiya’s parents (not the court) intentionally as, in the words of KM Asokan (father of Hadiya), ‘’ I am a desperate father, I will seek help from anyone.”
The Supreme Court however, has maintained its deontological stance in repeatedly putting Hadiya’s best interests first. On the 27th of November, the court freed Hadiya from the unsavory custody of her parents, and granted her the chance to complete her education and establish her independence. In the same vein of granting her a shred of normalcy, she has been authorized to live at the college hostel as per the regulations imposed on all other students. With the college dean as her court appointed guardian, creating another stir among the onlookers, it is important to note that until the case sees a cathartic cleanse from all doubt, Hadiya’s security is in question and the responsibility to preserve it lies with the Judiciary.
Finally, the singular question that forms the cornerstone of this watershed case and is on the path to bring a paradigm shift in the Indian legal framework, is, as put by Justice Y.V. Chandrachud, ‘’ at what stage can a Court venture into whether an autonomy of an individual can be probed. What should be the threshold for the Court to step in?” To answer this is to determine just how long the arm of the law truly is.
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