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The present write-up briefly aims to analyse the two questions framed by the
Apex Court in the infamous Hadiya case which will be addressed by the
Supreme Court. The case has been subjected to a lot of media polarisation
and through the debate many have lost sight of the aggravating facts and
circumstances which form the essence of the judgement given by the Kerala
HC.
The Court observed that the present case had to be viewed through
the lens of a ‘forced conversion.’ Akhila (alias Hadiya) came in
contact with a lot of people who influenced her to convert to Islam.
Her conversion was greatly influenced by an unauthorised Islamic
Conversion Centre, which also happens to be a banned radical
organisation. In Shahan Sha A. State of Kerala,[4] the Kerala HC
recognised the existence of forcible conversion by radical groups
targeting young girls from different communities. Further, the Court
observed that “there are too many incongruities that militate
against the story put forward by Akhila.”
It is quite clear that the marriage contracted between Akhila and
Shafin Jahan was an arranged one rather than a love marriage. The
same was organised in secrecy by one of the respondents who
clearly had no authority to act as a guardian and perform the
marriage according to Islamic religious rights. The Court expressed
strong dissatisfaction at the sudden turn of events and the
immediacy with which Akhila was influenced to marry a complete
stranger. It held such a step to be “an interference with the
dispensation of the justice by this Court and that the respondents in
question have betrayed the trust reposed on them by the Court.” It
further observed that, “the alleged marriage is only make-believe,
arranged in a chess-board manner, intending to take the detenue
out of reach of the hands of the Court.” The marriage was
conducted without the presence of Akhila’s natural guardians, who
were alive. The petitioner i.e. the father had no such issues with
Akhila practising Islam if that was her wish but this marriage
strengthens his side of the story and the fears that this could be a
case of ‘love-jihad.’
Interestingly, the Court on the basis of evidence produced held that
there was no conclusive document to prove that Akhila got
converted to Islam. Further, there is no certainty with respect to the
name of Akhila in the marriage certificate.
The Court took note of the facts that the person who had organised
the marriage of Akhila was involved in another case of forcible
conversion. Further, the husband in the alleged marriage is an
accused in a criminal case. It is obvious that no prudent parent
would want her daughter to marry a convict who has alleged links
with radical organisations. The Court went to the extent of
qualifying Shafin Jahan as “a stooge … assigned to go through a
marriage ceremony.”
The High Court has, therefore, inherent and wide powers under Article 226 of
the Constitution[7] and can direct NIA to undertake investigations to better
appreciate the suspicious and complex chain of events. In addition to this
jurisdiction, the NIA can also proceed to conduct investigation u/s 6 of the
National Investigation Agency Act, 2008,[8] with reference to the offences
which are enumerated in the Schedule to this Act.[9]
Again, the marriage happened immediately and without informing the Court
while the petition was still sub judice. Interestingly, in a subsequent hearing
on 21.12.2016, Shafin Jahan accompanied Akhila, who stated that he
intended to take her abroad where he was working. This contradictory
statement created reasonable doubt in the eyes of the Court and therefore, it
was justified to order a probe.
The necessity of the probe lies in the fact that extremist organisations target
Muslim youths who are generally disillusioned to convert to Islam and then
forced to work for terrorist factions. It is unfortunate that such cases of ‘love-
jihad’ are on the rise and therefore, it is indeed a necessity to investigate the
present case in light of the observations made by Kerala HC.
Conclusion
The Kerala HC was justified in ordering an NIA probe in the case because
clearly it was not an ordinary case and had created suspicion and doubts in
the eyes of the Court. The media simply stops itself to saying that Court has
no right to interfere in the marriage of two consenting adults.
References
[3] Asokan K.M. v. Superintendent of Police, 2017 SCC OnLine Ker 5085.
[4] Shahan Sha A. v. State of Kerala, (2010) 1 KLJ 47.
[9] Prabhati Nayak Misra, Hadiya Case: SC Directs Kerala Police To Share
Probe Details to NIA, August 10, 2017, available
at http://www.livelaw.in/hadiya-case-sc-directs-kerala-police-share-probe-
details-nia/