Above: Hadiya’s lawyer speaking to media on November 27. Photo: Anil Shakya

SC agrees to appoint dean of college as local guardian when Hadiya says she wants to continue her studies for her degree

Three critical comments came off the embattled girl Hadiya when she faced the Supreme Court bench of Chief Justice Dipak Misra and Justices D Y Chandrachud and A M Khanwilkar on Monday (November 27). The bench, however, was keen to establish the grounds first on what the status of the case is before talking to Hadiya.

In the first, when she was asked by Justice Chandrachud: “What are your dreams for future?”  Hadiya replied: “I want freedom.”

At this point she is restrained in the house of her father Asokan, who has gone to court against her marriage to a Muslim man Shafin Jahan.

When the Chief Justice asked her: “Do you like to continue your studies on state’s expense?” Hadiya replied: “I want to (study), but not on state’s expense when my husband can take care of me.”

When the bench again asked if she wanted to go back to her studies, Hadiya reiterated that she wants to see her husband.

She said that she will require a local guardian at the university. When the bench said “we will appoint the college dean as your guardian,” Hadiya said: “I want my husband as her guardian. No one else.”

This did not go well with Justice Chandrachud and the judge said: “Even I am not the guardian to my wife. Wives are not chattel.”

In the end the court appointed the dean of the college (where she is studying homeopathy) as the guardian. The court also said that if there is a problem then the dean will have to come to court to clarify.

The Hindu-Muslim marriage had been castigated as a case of love-jihad by some right wing fringe political elements before social media caught on and then mainline media made it into a circus of sorts.

The Kerala High Court, meanwhile, annulled the marriage (Hadiya is 25 and her husband is also an adult) and Hadiya’s husband Shafin Jahan has challenged the verdict at the top court. Earlier, Hadiya’s father Asokan’s appeal for an in-camera hearing was refused by the top court.

As per a court order, even the NIA has been investigating the marriage. There have been allegations that Jahan may be a part of a racket that lures Hindu girls into marriage for a consideration and that he is associated with terrorist networks. No amount of investigation has revealed any such links so far.

Other issues came to be considered as well during Monday’s hearing.

Senior advocate Shyam Divan requested to take the proceeding in-camera or to another court. He said that there are reasons “why we want in-camera proceedings.”

He then listed them.

“No. 1,” he said, “As far as Akhila vs Hadiya judgment of the High Court is concerned, there are some forces behind this. This is a very highly charged community change scenario and a security issue. There could be some threats for Hadiya.” He said that there are some documents that link Jahan to “some groups”.

At that Justice Chandrachud asked: “What is the authenticity of the transcript?”

Diwan replied: “These transcripts are voice recording of that person’s phone conversation. There are points that this particular person has some links… India Today did a sting operation – the report is on page 30 – in which it is written that there is some organization which is doing these type of marriages. Mansi Buraki was arrested by NIA who posted on social media and recruits persons for these things.

“On Facebook Mansi put an objectionable post on which Shafin Jahan commented: “How much do I get if I become a recruiter? And she replied in dollars. These are the points: because of that we want camera proceeding of Hadiya.”

Additional Solicitor Genera Maninder Singh said: “There is a website which is way to Nikaah. There is only one way to go to this website and that is you must be a member of a petitioner group.”

At that the CJI again asked the ASG: “You want camera proceeding?”

The ASG said: “I am concerned about the second part of the order. These are the solid facts. It had been established how this entire system is working. The way you lordship tell we will follow that. This is the larger issue. Any decision now can determine how the brainwashing is going on.”

At this senior advocate Kapil Sibal, representing Hadiya, said: “I am saddened today. Now we are fighting over the manner of the hearing. We are here for a girl’s right. Who recorded those clips? Whose voice is it? For eight months she is in the custody of her father. Why is all this happening? What is going on?”

At that Justice Chandrachud said: “Yes, this is the issue of two adults. Ordinarily, we are here about a dispute between husband and wife.”

Sibal told the judge: “Please ask her whatever you want to ask.”

The CJI asked the advocate to clarify: “When the concern is voluntary then what is the duty of court?”

Sibal insisted: “First ask, then go for any decision, but start talking to her. First ask her about herself, please talk to her.”

Justice Chandrachud said: “We must look decide on the threshold; to what extend can the court look into someone’s rights.”

The ASG kept insisting about the NIA report. And Divan suggested to the CJI: “First go with the background. I have a daughter, but first I want to know that what is the background of his (the groom’s) family. First go with the overall view and they go behind any person’s individual right or interact with her.”

Sibal again insisted: “What argument will I make where they talk about NIA investigation? Their request has been rejected thrice. There is nothing I can say. Whatever you want to do, you can do. She is here on your request. Now you are dealing with NIA investigation. Prima facie job is to talk to her first.”

At that Justice Chandrachud said: “You can walk out of the court, but we cannot do just that. We are sworn to constitution. This is not an argument that you decide, because we will decide whether you assist us or not.”

At that Sibal apologised.

The CJI said: The bar should assist us to decide the issue. We have not said that we are not going to talk to the girl, but we are only asking at what stage should we talk to her.”

Senior advocate V V Giri, appearing for the State of Kerala, said: “I am suggesting this as being an officer of the court that the court should look into the evidences which catch the eye and then talk to the girl. The Hadiya case is concerned with other issues, but the girl should not be kelp in custody because she has made some decision. We only want that Article 21 should be followed. When she walks out of this court she should be free to go wherever she wants to go.”

Sibal, who is representing the husband, said: “For which crime have I been under custody? She has not committed any crime. If I am wrong then take me into custody, but under which law? They are taking names of some organisation. Take actions against them.”

That was when the bench posted the academic question to Hadiya on her dreams and Hadiya said: “I want freedom.”

The case has been listed for further hearing in the third week of January.

—India Legal Bureau