Hadiya Case Verdict: Supreme Court Can Rule On Sexual Inclination But Not On Marriages
Why we need not just clarity but consistency also in matters of judiciary.
The Supreme Court on Thursday (8 March) struck down the Kerala High Court judgement that annulled the marriage of Akhila alias Hadiya with Shafin Jahan. In striking down the judgement, the judges have said that putting “a reasonableness to marriage choices” is not their job. If this is the reason for striking down a judgement that gives clear reasons, then one wonders how the apex court gave its ruling on Section 377 on sexual inclination of individuals or even how the Board of Control for Cricket in India can be run?
Consent and personal choices are at the core of plurality in the country. We will do anything to safeguard it. We can’t put a test of reasonableness to marriage choices. That’s not the job of the court.Supreme Court judges in the Hadiya case
Certainly, we need not just clarity but consistency too in matters of judiciary. Some in the social media are gung-ho over the Supreme Court ruling, saying it is an apt ruling on International Women’s Day. But the problem with those celebrating the judgement is that they are either ignorant of the facts of the case or haven’t really digested the truth behind why the Kerala High Court made such a ruling.
One, we have to understand why Hadiya’s father Asokan rushed to the Kerala High Court on 17 August 2016 with a habeas corpus petition seeking that his daughter be produced before him. Asokan’s first habeas corpus petition filed in January 2016 was dismissed in April after Hadiya said she wanted to pursue religious studies and she wanted to be under the care of Zainaba, who is reportedly a Popular Front of India worker. The court gave Asokan permission to see his daughter, but when he could not see her for a month, he approached the court in July.
The second fact that has to be taken note of is what happened in the Kerala High Court during the hearing on 14 November 2016. During that hearing, Asokan expressed serious apprehensions about Hadiya continuing to reside at Zainaba’s house. The father also told the court that his daughter had not completed her homeopathy course as she was yet to undergo house surgeon training. The judges sought the actual situation on Hadiya’s education. It had also questioned why Hadiya should be living in Zainaba’s house.
On 19 December 2016, the court was told that Hadiya had not completed her course. To this, the court asked her to undergo the training immediately and asked the woman and her father to appear before the court on 21 December for further direction. (Hadiya had filed a misleading affidavit on 26 November that she had completed her course and she was working as a trainee with a homeopath for Rs 2,000 to meet her monthly expenses).
Come 21 December, Hadiya appeared before the court accompanied by a stranger. She told the court that she had married this person called Shafin Jahan on 19 December at Zainaba’s residence. The marriage was “performed” by the kazi of Puthoor Juma Masjid. However, the court took a serious note of the development and the judges felt it as a “subterfuge act” by Hadiya, Zainaba and people representing them. The judges said they were perturbed and concerned since on 19 December when they were telling all the parties concerned to report on 21 December for orders, there was no indication of Hadiya’s marriage taking place. The court also ordered a probe into the antecedents of Shafin Jahan. The judges expressed their dissatisfaction over the manner in which the marriage was conducted and ordered Hadiya to be lodged in a women’s hostel. The judges’ reasoning for ordering the woman to be put up in the hostel was:
...it is necessary to bear in mind the fact that the detenue who is a female in her twenties is at a vulnerable age. As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married. We consider it the duty of this Court to ensure that a person under such a vulnerable state is not exposed to further danger, especially in the circumstances noticed above where even her marriage is stated to have been performed with another person, in accordance with Islamic religious rites.
The case came up for hearing again on 4 January 2017 when the report of Superintendent of Police, Perinthalmanna, was placed before the court. The judges found the report to be perfunctory and did not provide any detail that the court wanted on the marriage of Shafin Jahan. (The police official, according to the court, never conducted any investigation worth the name. In their ruling, the judges called for disciplinary action against the police official for his lapses in not helping the court.) The court was, in particular, worried that there was no interaction between Shafin Jahan and Hadiya before the marriage.
Taking all the developments leading to the marriage into consideration, the Kerala High Court made these observations:
- It was abnormal 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 inclination to study another faith was out of ordinary.
- Hadiya’s so-called study of Islam was confined to attending a two-month course.
- What compelled her to abandon her studies, her parents and her family and to embark upon a pursuit of religious studies?
- Zainaba and her husband arrogated to themselves the role of the guardianship of Akhila (Hadiya) and they had allegedly given her in marriage to Shefin Jahan. The court was kept totally in the dark regarding the developments.
- The sequence of events reveals a deliberate attempt to force the hands of the court and to present it with a fait accompli.
- There were sufficient materials available to justify a conclusion that there are forces acting from behind the curtains controlling Hadiya and extending all necessary support to her.
The judges found that Hadiya had been turned hostile against her parents and she had come across as a person who is not in a position to take a firm and independent decision on her own. The court also refused to believe that those behind Hadiya were only out to help her.
The judges said Hadiya’s case was not that of a girl and boy falling in love and the whole genesis for the case stem from expressing their unhappiness over the woman living in Zainaba’s residence. Therefore, the marriage was only a make belief that will take away Hadiya from the hands of the court. The judges felt that the woman wasn’t allowed by those around her to decided freely what she wanted.
We will be hearing and coming across more such cases. Certainly, Hadiya’s isn’t the last we have heard and we can expect these very observations to change. The Supreme Court should have stretched itself in this.