The Supreme Court of India on Thursday considered the notion of vulnerability of adults in the Hadiya case, and wondered if a court has jurisdiction to annul a marriage if an adult is deemed vulnerable.
Shyam Divan, representing Hadiya’s father Asokan, argued that Hadiya was a vulnerable adult, being under the influence of extremist organisations, and had thus married Shafin Jahan.
The Chief Justice of India Dipak Misra then said vulnerability is subjective, and wondered if courts have the right to then annul marriages.
Divan had also argued that the Kerala HC exercised parens patriae in the case and was right in annulling the marriage. But the CJI said it was a not a case of rape, but a consensual marriage between two adults. The bench also asked how can the court say otherwise, if two consenting adults maintain that they are married.
Although Divan pressed the bench to look into the National Investigation Agency reports on the trafficking of people to terror groups like the ISIS, the bench said that such issues could be dealt by the government and reiterated that the subject being discussed here was whether a court can annul a marriage between consenting adults.
The bench observed that the government can regulate a person's right to travel abroad, but here the question is whether the court can annul a marriage or not.
Hadiya is now the 9th respondent in the case and the bench posted the case for further hearing on March 8.
In her affidavit filed on Tuesday, Hadiya described the circumstances under which she converted to Islam from Hinduism – she said that she had been kept under prolonged confinement without the freedom she is entitled to.
The affidavit was filed after the SC made her a respondent in the case.
"Even now I am under police surveillance. I most humbly pray that my entire liberty may kindly be restored to me," she said.
In her affidavit filed through her lawyer Marzook, Hadiya said that Shafin Jahan is her legally wedded husband and that she wants to continue to live as his wife. She reiterated that she converted to Islam and married Shafin of her own free will.
Hadiya stated that her father Asokan is under the influence of certain sections of people "who were trying to use him". "Otherwise, I do not see how my father, who is an atheist, would object to me changing my religion or marrying someone from a different religion," she stated.
On Tuesday, Asokan also filed a counter affidavit, in which he alleged that the people responsible for Hadiya’s conversion had “an intent of trafficking her out of the country to ISIS territory”.
He also likened the alleged indoctrination to that of the modus operandi of terrorist outfit Boko Haram in Nigeria. Quoting from the affidavit, "My daughter is not the only victim. There are several others, some of whom, such as Nimisha, Merin, Aparna, Bexin, Bestin and Sonia, have already been trafficked after being fed with extremist propaganda. Recently, similar methods have also been used by Boko Haram in Nigeria in which the captors kidnapped girls from a school and impregnated them. Now, they have declined to meet their parents from whom they were kidnapped."
Meanwhile, activist Rahul Easwar sought to intervene in the case, seeking to remove those portions from Hadiya's affidavit in which he is mentioned. The court said they would be expunged.
In her affidavit, Hadiya said that Rahul met her thrice and urged her to give up Islam. Rahul’s lawyer claimed that he had visited Hadiya to “help” her, but she, in turn, levelled these allegations against him.
The bench further allowed the NIA and Asokan to file counter affidavits against Hadiya's.
Background
In 2010, Hadiya became friends with two girls – Jaseena and Faseena – at her Salem college, and said that she was "impressed by their good behaviour and character". In 2013, she decided to accept Islam because she was "impressed by the religion". Eventually, she started performing namaz in her own room.
However, her parents were against her decision and she was forced to keep her newly embraced faith a secret. But things reached a head, and on Januar2, 2016, Hadiya moved to Jaseena's house in Malappuram district.
On March 21, 2016, she completed her Islamic course in an institution under the Markazul Hidaya Sathyasarani Educational and Charitable Trust.
In January 2016, Asokan moved the Kerala HC with a habeas corpus petition. However, this petition was disposed of after Hadiya said she had left home of her own will to study Islam.
The court had then allowed her to stay with Sainaba, a social worker from Malappuram, who helped her get on with her Islamic studies and also provided her with a place to stay. Hadiya had asked Sainaba to find a "matching, Muslim bridegroom" for her. On April 7, 2016, Hadiya signed up on the matrimonial website "waytonikah", where she met Shafin.
The marriage was solemnised on December 12, 2016, at Sainaba's house.
On December 20, 2016, Hadiya said that she appeared before a local registrar along with Shafin and submitted an application for registration of the marriage. "However, after the hearing on December 21, the division bench of the Kerala HC passed an interim order directing the police to confine me in SNV Sadanam Hostel".
Later, in an order on May 24, 2017, the Kerala HC annulled Hadiya's wedding to Shafin, calling it a scam and sent her to the custody of her parents.
Hadiya has accused her parents of keeping her under house arrest after she was taken back home, following the Kerala HC order annulling her wedding to Shafin in May 2017.
Hadiya has also accused her parents of mixing drugs in her food. She said that her mother used to insist that she eat food even while she was fasting during the Ramzan month.