The Kerala High Court annulled Hadiya and Shafin’s marriage in May and now, the Supreme Court has ordered an NIA probe into it. Can the courts really do this?

As the complex saga of the young woman, cutting across religions and personal relationships, stands scrutinized at the Supreme Court of India, Hadiya, has been at home with her parents for nearly a year. She hasn’t been allowed to step out even once or meet outsiders.

“She has now started speaking to us freely. She had completely clammed up a few months ago. She wears the hijab on a few days, doesn’t wear it on some. We don’t question her on her choice anymore. It’s up to her. The case is sub-judice, so we never discuss it with her,” 57-year-old KM Ashokan tells TNM over phone from his residence in Kottayam district of Kerala. 

The ex-serviceman is speaking about his 25-year-old daughter Akhila, who embraced Islam and took the name Hadiya without the knowledge of her family. Since January 2016, Ashokan and his wife Ponnamma have been waging a legal battle to prove in court that she was not acting on her free will. This despite Hadiya having repeated her stand to the court that she had converted by choice.

Her case has now reached the top echelons of Indian judiciary, sparking debates on jurisdiction and power of the courts in the personal lives of adults.

After the High Court admitted a second habeas corpus filed by Ashokan in August 2016, the court suddenly nullified Akhila’s marriage to Shafin Jahan. The court had taken umbrage to the fact that the wedding was registered without the knowledge of the court while the case was still on.

Now, the case has reached the Supreme Court, with the apex court ordering a probe by the country’s top counter-terror agency, the National Investigation Agency (NIA).

Why has a marriage between two adults caused such havoc? On what basis did the High Court of Kerala nullify their marriage, despite Hadiya saying that she had done so on her own free will? Is it right for the Supreme Court to order an NIA probe into their marriage?

The case history

Born to Hindu parents in Vaikkom in Kottayam district, Akhila joined a college in Salem to pursue Bachelor of Homeopathic Medicine and Surgery. On 6 January, 2016, Akhila went missing from a house in Selam, where she was staying with her friends Faseena and Jaseena.

Akhila’s parents filed a police complaint alleging that her friends Faseena and Jaseena, and their father Aboobacker, had taken Akhila away. A case was registered against Aboobacker. The family filed the police complaint after they were informed that Akhila went to her college on January 6, dressed in a hijab. However, despite the police case, Akhila could not be traced.

Hadiya alias Akhila

Following this, Akhila’s father Ashokan filed a habeas corpus petition at the Kerala High Court. Akhila appeared before the court on January 19, and told the court about the circumstances under which she left her home and parents.

Akhila – who had by now converted to Islam and taken the name Hadiya – told the court that she was “impressed” by her friends’ “timely prayers and good character” and was taken in by Islam after reading Islamic books and watching videos on the internet. She told the court that she had been following Islam for three years, without formally announcing the change of faith. She told the court that she had left her home on January 2, 2016, because her father had seen her pray the Islamic way and had warned her against doing so. Akhila then went straight to Jaseena’s and Faseena’s house in Perinthalmanna in Malappuram district.

Their father Aboobacker took her to a religious institution named KIM, where she was refused admission. Akhila was then taken to the Therbiathul Islam Sabha, an Islamic study centre, in Kozhikode. She was admitted as an ‘external candidate’ after being asked to file an affidavit that she was accepting Islam on her own accord. This meant that Akhila has to stay at Aboobacker’s house and attend the study centre.

According to Akhila, soon after, Aboobacker refused to keep her at his residence and approached a third institution named Sathya Sarani, an educational institution and conversion centre in Manjeri, Malappuram. Sathya Sarani sent Sainaba, a social worker and member of the Popular Front of India, to meet Akhila. From January 7, Akhila started staying with Sainaba.

Akhila’s father alleged that Sathya Sarani was involved in several illegal and forced conversions. But on January 25, the Kerala High Court dismissed the habeas corpus petition, after finding that Akhila was not in illegal confinement.

Judges CK Abdul Rehim and Shaji P Chaly said, “The original petition is hereby disposed of by recording the fact that the alleged detenue is staying in the above said institution on her own free will. It will be left open to the petitioner and her family members to make visit to her at the above institution, subject to regulations if any regarding visiting time.”

The second petition   

Six months after the Kerala High Court dismissed Ashokan’s habeas corpus petition, the 57-year-old filed another petition. This time, he alleged that efforts were being made to transport Akhila out of the country and to get her hurriedly married off to a Muslim man.

The second petition was filed on August 17, 2016. The court passed an interim order stating that Akhila should be kept under surveillance to ensure that she was not taken out of the country. After this interim order was passed, the police found that Akhila had shifted from Sainaba’s house to an undisclosed location.

Meanwhile, Akhila and Sainaba approached the court and asked for their case to be taken up soon.

When the case was heard, Akhila told the court that Sainaba was her guardian and that she did not want to go back to her parents. The court sent her to a hostel in Ernakulam after her father expressed concerns over her safety.

When the court interacted with Akhila in person in the month of September, she told the court that she was being lodged in the hostel for no fault of hers and that she should be allowed to reside in a place of her choice. She told the court that she does not possess a passport, and her lawyer argued that there was no possibility of her being taken to Syria. The court sent Akhila with Sainaba, and asked them to inform the Deputy Superintendent of Police of Perinthalmanna if Akhila was shifting to another place again.

In November, the court expressed concern over Akhila continuing to live with Sainaba and sought their source of income. Akhila said that as a doctor trainee, she was earning a monthly income of Rs 2,000 to sustain herself. However, the court noted that she had not completed her House Surgeoncy and that she was not eligible to practice. In the next hearing on December 19, the court asked her to complete her course and shift to the college hostel. Akhila agreed to the court’s condition. Akhila’s father was asked to appear before the court on December 21 with her certificates so that Akhila could resume her studies.

What happened next angered the court.

The ‘stranger’ and the ‘sudden marriage’

On December 21, Akhila appeared before the court accompanied by “a stranger.”

Her counsel told the court that Akhila had married a Muslim man, Shafin Jahan, on December 19 according to Muslim laws. The court was not convinced and questioned why the court had been kept in the dark regarding the marriage. The court observed that the marriage took place on December 19, on the same day the court had heard the case. The court also raised several doubts regarding the manner in which the wedding was held. The judges were livid with what had happened.

Hadiya and Shafin Jahan/ Image Courtesy: Keralashabdam Source: Shafin Jahan/Facebook

According to Akhila’s counsel, the wedding happened at the house of Sainaba in the presence of relatives and was solemnized by the qazi of Puthoor Juma Masjid.

“The question that now crops up is whether the marriage that has been allegedly performed is not a device to transport her out of the country. We are not aware of the identity of the person who is said to have married her, nor his antecedents,” the court said.

Judges K Surendra Mohan and Abraham Mathew asked the following questions:

1) In what manner had Shafin come into contact with Akhila?

2) Under what circumstances had she agreed to marry him?

3) Why was the marriage conducted at Sainaba’s house?

4) Which is the organisation that issued a certificate of the marriage? Is it registered?

5) Why were Akhila’s parents not informed about the marriage?

The Government pleader submitted that Sainaba was involved in another case of forced conversion and in that case too, the convert woman had married a Muslim man “to avoid any interference from the court.”

“As per the Indian tradition, the custody of an unmarried daughter is with her parents, until she is properly married off,” the court observed.

The court said that it was dissatisfied with the manner in which the marriage was conducted and sent Akhila to SNV Sadanam, a ladies’ hostel in Ernakulam, ordering that she shall have no access to mobile phones.

Shafin Jahan, the stranger turned husband

After the information about Akhila’s marriage to Shafin came to light, the court asked the Deputy SP of Perinthalmanna to submit a report on Shafin.

Shafin Jahan

Shafin Jahan turned out to be an active member of the Social Democratic Party of India (SDPI), the political wing of the Popular Front of India (PFI). A native of Kollam, the college graduate said he wanted to take Akhila to the Gulf, where his mother lives. In January 2017, the police told the High Court that Shafin had links with Sathya Sarani and that he was an accused in a criminal case. He was also part of a WhatsApp group called ‘Thanal’ run by the core committee of SDPI Kerala, the police said.

“Mansy Buraqui who was arrested by the National Investigating Agency at Kanakamala on 2.10.2016 on the allegation that he had connection with the extremist organization, Islamic State (IS), was also a member of SDPI Keralam and Thanal. Though it is stated that he had later been removed, the fact remains that Sri Shafin Jahan had association with him. He is also accused in a criminal case,” police told the court.

The Government Pleader submitted that although Shafin was an active user of Facebook, disclosing every minor detail of his daily life, he hadn’t shared anything about his marriage to Akhila. It was only on January 10, when a Malayalam daily reported on the case, that he shared it on Facebook.

However, Akhila’s counsel argued that she had expressed her desire to get married in April 2016 and her name was registered in a matrimonial site named “Way to Nikah.” It was through this site that Shafin’s proposal came, they said.

Court unconvinced

On May 24, 2017, the same bench of the Kerala High Court that had in March 2017 allowed Akhila to lead the life of her choice, called her wedding a sham.

Handing out an order, the court said, “Shefin Jahan is one such person who has been assigned to play the role of going through a sham of a marriage with Ms. Akhila, with the object of transporting her out of India…According to the learned counsel, it was with the said objective that the entire sequence of events had been planned and executed. The marriage was conducted in a hasty manner with the object of overreaching the jurisdiction of this Court.”

The court concluded that Shafin was “only a stooge who has been assigned to play the role of going through a marriage ceremony.”

The court was unconvinced about many elements in the story. It said that the case was not about “a girl falling in love with a boy of a different religion and wanting to get married to him.”

 “In the first place, it is not normal for a young girl in her early 20s, pursuing a professional course, to abandon her studies and to set out in pursuit of learning an alien faith and religion. The normal youth is indifferent towards religion and religious studies. Though the possibility of genuine interest in the study of religion on the part of any person cannot be ruled out, such inclination is in the first place out of the ordinary. Though the alleged detenue in this case is stated to have set out to study Islam, her study has been confined to merely attending a course of two months duration conducted by the 6th respondent (Sathya Sarani). She does not appear to have conducted any study thereafter,” the court observed. 

“Are there any radical organizations involved, are questions that plague an inquisitive mind. But sadly, there are no answers available in this case,” the court said. Calling the young woman, ‘weak and vulnerable’, the court said that she had no clear plans for her life or future and said that there was an organized racket behind the conversion.

The court, in what has stunned legal experts and jurists, nullified the marriage, and sent Akhila back to the custody of her parents.

Two months after the Kerala HC nullified their marriage, Shafin approached the Supreme Court with a special leave petition against the HC order. Hearing the case, the apex court took note of the observations of the HC that there were radical groups influencing and converting young girls. Shafin came packing heavy legal firepower at the Supreme Court – Kapil Sibal and Indira Jaisingh were representing him.

While Sibal argued that Hadiya was not a child, the court asked whether she knew Shafin, the man she got married to. Sibal maintained that their marriage was an arranged one which happened through a matrimonial site.

After asking the Kerala government to produce all the documents related to the case, the SC on August 16, ordered an NIA probe into the incident. The next hearing of the case will be fixed as soon as the NIA submits its report.

Family fights on as the debate rages on

Thousands of kilometers away in their home in Kottayam, Ashokan hopes that the apex court gives a favourable judgement in the case.

“We shall accept whatever the court says. What else can we do?” he asks.

But even as the family puts on a fight, the legal proceedings in the matter have sparked off a public debate.

The HC order was, however, met with stiff opposition from Muslim groups in the state, with the Muslim Ekopana Samithi even calling for a hartal in Ernakulam against the HC’s verdict.

“She is our only daughter and it is everyone’s right to practice any religion of their choice. Let her do so. But we will pursue the legal battle,” Ashokan says.

Popular TV news panelist Rahul Easwar, who has been in constant touch with Akhila’s family in the past few months, tells TNM that while her parents now accept that their daughter can practice a religion of her choice, they do not want her to leave them.

“Akhila has been influenced so much that now she is trying to convert her mother too. The mother told me that Akhila was questioning them on why the family didn’t have any progress despite her mother faithfully praying to the Hindu Gods. She told her mother than she must also embrace Islam so that her mother can go to heaven and not to hell, like non-Muslims,” Rahul said. 

Many read the case as a clear violation of rights, and arguments have been made in the public domain that this is about Akhila’s personal rights, and that the courts have no right to nullify the marriage of two consenting adults. On the other hand, people like Easwar don’t see a marriage, only an engineered and institutional attack on Hindus.

From the left: Rahul Easwar, Akhila, Ashokan

“Agree that there is a court case going on. But look at the kind of lawyers Akhila, who claimed to have been earning Rs 2000 a month, hired for herself. Look at the kind of lawyers who are representing Shafin at the SC. How can they afford it? Where is the money coming from?”

Advocate C Rajendran, who represented Akhila’s parents at the Kerala HC, says that the marriage was purely an interference with the administration of justice.

“The court had posted the case for December 21 and then Akhila appears with a stranger and claims she is married to him. This proves that Sathya Sarani and Sainaba didn’t want to leave her custody and orchestrated a marriage. It means that there is an organization behind the whole thing,” he says.

The public discourse in Kerala too is seemingly accommodating of the argument that the case is not just about the marriage.

“I understand that Akhila was produced before the court after her family filed a habeas corpus and the court had let her choose her life. In such a context, the court is her guardian. So she is supposed to inform the court if she is getting married, but she failed to do so. That is why the court dissolved such a marriage. I do believe that every woman has the right to choose their religion and the partner of her choice. But there are some technicalities here, which needs to be looked at. There’s no point in protesting against the court verdict without understanding that,” says Malayalam writer MN Karassery.

What further seems to have convinced Akhila’s parents and her supporters is that this is not the first such case.

“There are so many similar cases, like the case of Thiruvananthapuram-native Nimisha. The court had dismissed the habeas corpus filed by her mother and later she went to Afganistan to join ISIS. In Akhila’s case, this was the second time her father approached the court. The case is not about her individual rights or freedom of choice. Like the court observed, she did not fall in love with a man from different religion and leave her family. She converted and then while the case was going on, got married to a total stranger, Rajendran says.“This is about radicalisation. She, like Nimisha, has been brainwashed with the stories of horrors of hell and lured into converting with the promise of heaven.”

“I agree that there have been instances from Kasargod and Thiruvananthapuram where women converted to Islam and are said to have gone to ISIS. But do we have conclusive evidence to prove it? I am not contradicting the court’s observation that there is an organisational movement, but we shouldn’t look at every case with that prejudice. Is there any proof for this organisational movement? I feel it is exaggerated,” says Karassery.

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