Monday, 30 October 2017

Supreme Court sets date to hear Hadiya on her conversion to Islam and marriage

Supreme Court sets date to hear Hadiya on her conversion to Islam and marriage
Krishnadas Rajagopal NEW DELHI,  OCTOBER 30, 2017 13:00 IST
UPDATED: OCTOBER 30, 2017 17:16 IST
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http://www.thehindu.com/news/national/sc-orders-hadiya-to-be-produced-in-court-on-november-27/article19948767.ece?homepage=true

TH14HADIYA
Hadiya, is a 24-year-old - formerly known as Akhila - who converted to Islam.   | Photo Credit: Special Arrangement
The court overrode the submissions made by Hadiya’s father that she is indoctrinated and her consent should not be treated as absolute.

The Supreme Court on Monday ordered the production of Akhila alias Hadiya, a Hindu girl in Kerala who converted to Islam and subsequently married a Muslim man, before it on November 27 at 3 pm.

A Bench led by Chief Justice of India Dipak Misra said the court first wanted to know whether her conversion to Islam and marriage to Shafin Jahan was of her own volition.

The court overrode the submissions made by the girl’s father, in whose custody she is, that she is indoctrinated and her consent should not be treated as absolute.

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The father, represented by senior advocate Shyam Divan, submitted that Jahan was a pawn in a “huge organisational apparatus” to radicalise young persons in Kerala. He said the questioning of his daughter should be done in-camera and not in open court.

“The issue pertains to marital relationship,” Chief Justice Misra remarked.

The court stood firm by its decision to hear the girl first, saying “We call the person and question her. At the time, if we have any doubts that she was not free to make her choice... then we will take a final call”.

NIA counsel and Additional Solicitor General Maninder Singh said “indoctrination is an exception to free consent”.

The Supreme Court has repeatedly questioned how the Kerala High Court had annulled the marriage and transferred the custody of an adult to her father - all on the basis of a habeas corpus petition filed by the father.

“In normal cases of habeas corpus, the person is produced. But this was a case of indoctrination,” Mr. Singh submitted.

“In a composite and plural culture like ours, constitutional courts respond to radicalisation. In the U.S. and the U.K., courts respond well before a person crosses over to the realm of criminality. Courts cannot remain silent in plural societies,” Mr. Divan justified the High Court’s decision to annul the marriage.

“But she has been in confinement,” Chief Justice Misra remarked.

“She is not in confinement,” Mr. Divan said.

“Then produce her,” Chief Justice replied.

The court observed that it does not go by the “pulse or impulse of the society, but by the law of the land”.

The apex court had on August 4 passed an order, directing the NIA to use this case as a point to investigate whether there is a pattern of radicalisation in Kerala.

In an earlier hearing, the Bench, also comprising Justices A.M. Khanwilkar and D.Y. Chandrachud, had asked how the Kerala High Court, on May 24, annulled the marriage of the girl, who is an adult, while exercising writ jurisdiction under Article 226 of the Constitution.

“We will hear logical and legal arguments on two issues - can the High Court nullify a marriage exercising jurisdiction under Article 226 and was an NIA probe necessary,” Chief Justice Misra had observed.

Senior advocate Dushyant Dave and advocate Haris Beeran, who had in that hearing appeared for Mr. Jahan, had strongly objected to the SC order for NIA investigation. Mr. Jahan has filed a plea for recall of the order.

“The order for NIA investigation strikes at the very foundation of multi-religious society... Two senior BJP functionaries have married members of minority communities... Call the girl here,” Mr. Dave had submitted.

The Kerala government, which had agreed to give the probe in favour of the NIA, also came forward with a plea to file an affidavit.

Former Supreme Court judge, Justice R.V. Raveendran, had refused the SC’s assignment to monitor the NIA probe.

Jahan’s recall petition had requested the apex court to stop the NIA probe in light of subsequent events showing the girl converted of her own free will and she is being confined and “tortured” by her parents.

Jahan also sought a direction to be issued to the Director General of Police, (Law and Order), Trivandrum, Kerala to produce the girl before the Supreme Court.

“NIA has already commenced investigation and already found a link, all without the guidance of Justice Raveendran, the worst fears of the petitioners have therefore been realised - that such an investigation is clearly not fair and is against the orders of the Supreme Court,” the application said.

It said that keeping the girl in custody against her will wherein she is not free to practice the religion she has chosen of her own free will is a clear violation of her fundamental rights,” it said. 

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