New Delhi: To ascertain the mental status of the girl Akhila alias Hadiya caught in the ‘love jihad’ controversy, the Supreme Court on Monday directed the girl’s father to produce her in court on November 27 for examination.
A three-judge bench comprising Chief Justice Dipak Misra and Justices A.M. Kanwilkar and D.Y. Chandrachud said such examination was necessary to find out whether she converted to Islam of her free will and married Shafin Jahan with her own volition and consent. The alleged conversions had gained the sobriquet of “love jihad” in Kerala, and the boy Shafin Jahan moved the apex court for production of his wife Akhila, alias Hadiya, after the high court had annulled his marriage with the girl on the ground that it took place without her free will and consent.
The CJI did not agree with the submission of Additional Solicitor General Maninder Singh, appearing for the National Investigation Agency (NIA), to first look at the confidential probe report submitted in a sealed cover before summoning her. The ASG submitted that there could not be valid free consent when a person had been radicalised and indoctrinated. He said there is a pattern of indoctrination in 89 cases in Kerala and the Popular Front of India (PFI) was involved in nine such cases.
He said the petitioner Shafin Jahan was associated with the PFI and the NIA has found a systematic apparatus engaged in targeting and radicalising youth for jihad. Singh said when a person is indoctrinated to hate her own religion and parents, there is little to determine whether free will was exercised. The concept of indoctrination is an exception to free consent. This is a case of manipulation, which does not fall into a straightjacket formula.
The CJI, however, told the ASG:
We will interact with the girl in open court to take an preliminary assessment of her mental state. If we suspect any indoctrination, this court has powers to direct her to detailed examination by appropriate authorities. There is nothing in law that stops someone from falling in love and marrying a criminal. We will not send the girl with her husband after speaking with her. We want to know whether she acted on her own volition and desire.
Senior counsel Shyam Divan, appearing for the father, wanted the court to take a final call after taking the NIA report into consideration. He submitted that as she has been indoctrinated her consent should not be treated as absolute. He argued that Hadiya was a pawn in a “huge organisational apparatus” to radicalise young persons in Kerala. He said two criminal cases had been registered against him. The questioning of his daughter should be done in-camera and not in open court.
He had placed in the court incriminating documents, which he insisted proved that the girl was indoctrinated by radical elements. He said the boy is an active member and administrator of the WhatsApp group Social Democratic Party of India (SDPI) Keralam. He is a member of the core committee of the SDPI called, Thanal. Mansy Bouraqui, an ISIS agent, was also a part of the said committee. It is apparent from the said findings that the marriage is nothing but a charade. The network/organisations backing them realised that it was becoming increasingly unconvincing as also arousing deep suspicion to justify the retention of Akhila with other supporters who were otherwise strangers. It is obvious that the subterfuge of a marriage was devised to avoid further suspicion and keep the court at bay, he argued.
The CJI told the counsel:
The issue pertains to marital relationship. The issue is whether the Kerala high court exercising its jurisdiction in a habeas corpus petition could have annulled the marriage and order custody of the girl to the father. We will examine only the legal principles. Let the NIA continue its probe and we are not bothered about it.
The ASG said “in normal habeas corpus cases, the person is produced. But this was a case of indoctrination. In a composite and plural culture like ours, constitutional courts respond to radicalisation. In the US and the UK, courts respond well before a person crosses over to the realm of criminality. Courts cannot remain silent in plural societies.” The CJI responded saying that the court does not go by the “pulse or impulse of the society, but by the law of the land”.
Senior counsel Kapil Sibal appearing for the petitioner Shafin Jahan refuted the allegations that his client was associated with the PFI and criminal cases are pending against him. He said the marriage took place two years after she converted to Islam and his client could not be accused of radicalising her. The bench posted the matter for further hearing on November 27.