When the girl converted to Islam and married her chosen one (a Muslim), her father ran to the court, branding the man an ISIS recruiter
~By Irfan Amayur
The Kerala High Court’s division bench of Justices Surendra Mohan and Abraham Mathew on May 24 ordered that a marriage by two educated, consenting adults, Akhila (alias Hadiya) and Shafin Jahan, was invalid in law and ordered the girl (Hadiya) to be taken back to her parents. This judgment has been vociferously contested in the state, in the media, on social media and across all sections of the intelligentsia.
It must be mentioned here that the girl has neither been declared intellectually incapable of handling her own affairs and neither has a medical test been ordered to determine the same.
The basic plinth on which this judgment was based is, as the bench observed, “a girl aged 24 years is weak and vulnerable, capable of being exploited in many ways. This court exercising Parens Patriae (Latin, meaning: A doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf) jurisdiction is concerned with the welfare of a girl of her age. The duty cast on this court to ensure the safety of at least the girls who are brought before it can be discharged only by ensuring that Ms. Akhila is in safe hands.”
The story is a little different, though. Talking to India Legal News over phone from Ernakulam, her husband Shafin said: “This is a clear violation of our constitutional rights, by which we can choose any religion and marry anybody from any religion. A girl, mature enough to take her own decisions, says she wanted to convert (to Islam from Hinduism) on her own.”
That was the crux of the problem. Hadiya, who lives in Vaikom in Kottayam, Kerala, learned about Islam while pursuing her BHMS course at the Shivaraj Homeopathy Medical College at Salem (Tamil Nadu). She got influenced, and three years later, got converted. Her friends in Salem helped in her conversion, as per her own admission in media reports.
When she returned to Kerala, she joined a theological study centre, called Sathyasarani in the Malappuram district of Kerala. At this time, her father, KM Ashokan, filed a habeas corpus application at the high court, claiming that his daughter was missing. When the court ordered the police to find her, Hadia herself appeared in court and informed that she had left home of her own will.
At this, the division bench of Justices CK Abdul Rahim and Shaji P Chaly, had observed: “We are convinced that the alleged detenue is not under any illegal confinement. She is at present staying in the above said institution on her own wish and will. She is not under illegal confinement. Therefore there exist no circumstances warranting interference for issuance of any writ of habeas corpus.”
Meanwhile, she had met Jahan over an online marriage portal and they had been married by a kazi as per Islamic rights in Puthoor Juma Masjid in Kerala. The date of her marriage is December 19. Talking to India Legal, Jahan clarified: “The marriage was registered as per government norms.”
Her father, soon after, filed another habeas corpus petition, saying that his daughter had been influenced by terrorist ideologies and had converted to Islam to join the ISIS. This petition landed in front of the second division bench, as mentioned earlier.
The second bench’s observations were a bit out of the ordinary. It said: “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 (Hadia) 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 (the theological centre in Malappuram). She does not appear to have conducted any study thereafter. In the present case, the academic records of Ms. Akhila show that she was not a bright student. She had failed in all her subjects in the first year. Of course, she cleared all the papers later. She has completed her BHMS course and what remains to be completed is only her House Surgeoncy for acquiring eligibility to practice… What is it that has compelled her to abandon her studies, her parents and her family and to embark upon a pursuit of religious studies?”
It is debatable whether a court of law can decide on the course of legitimate action that a private citizen wishes to take, but the end result was—the court nullified the marriage and forced Hadia back to her parents.
The court had also observed: “No prudent parent would decide to get his daughter married to a person accused in a criminal case. This is for the reason that, the possibility of such a person getting convicted and being sent to jail cannot be ruled out. It is clear that Sri Shafin Jahan is only a stooge who has been assigned to play the role of going through a marriage ceremony.”
As per the court’s own admission, this was based on mere assumptions.
A Supreme Court judgment of 2006 may be recalled in this context. In the case of Lata Singh vs State Of Uttar Pradesh, the apex court bench of Ashok Bhan and Markandey Katju had observed: “…this is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.”
If that judgment has set a precedent, then the Kerala High Court judgment annulling this marriage goes against such precedence.
Said Jahan to India Legal: “She is my wife, legally wedded. I will challenge this judgment in the Supreme Court.”
The story has not seen the last of it.
Read the judgment