Gripping hearing of a widely watched case

It should have been a gruelling time at the Supreme Court for Hadiya, who is at the centre of a landmark case in which her husband Shafi Jahan pleaded to repeal a Kerala High Court verdict that annulled his marriage with her. 

The Hadiya case has been keenly watched in political circles as a legal battle, carrying wider ramifications. The three-judge bench comprising Chief Justice Dipak Misra, Justice AM Khanwilkar, Justice DY Chandrachud  sat on Monday primarily to hear Hadiya whose will the apex court had wanted to know, as decided in its earlier session in late September.  But because her father Ashokan's lawyer first wanted to have the hearing in-camera, the court considered that and rejected the demand. The lawyer for the National Investigation Agency (NIA), Additional Solicitor General Maninder Singh also stepped in to demand that the court should treat this case as one involving extremist organizations trying to rope in young women. Kapil Sibal and Indira Jaising appearing for Shafi Jahan countered their contentions and asked for open hearing.  

When all these arguments went on, Hadiya who was summoned to state her position, had to be on her foot for close to two hours as silent spectator. And then after all the suspense and sensation, finally came the court's decision to hear her in open court.      

Lawyer Shyam Divan appearing for Ashokan, Hadiya's father,  placed his arguments on four grounds: first, Hadiya's position is well-known, but  some material has been unearthed which shows “tremendous organisation support and a well-oiled machinery” working behind such conversions; therefore, the Bench has to probe deeper which is better done privately. Secondly, there is a communally charged atmosphere and questions and answers in the open court could flare up sentiments. Thirdly, he produced an audio recording by one Abdul Rashid, who had links with the Popular Front of India (PFI), making an attempt to call to arms. Fourthly, a recent sting operation by India Today on Sainaba and Satya Sarani had revealed a well-oiled machinery to convert people in the guise of cultural organisation.

Divan produced an audio tape of Hadiya's conversations and a document with translation of her husband Shafin Jahan's chat with a recruiter for Islamic State (IS) via Facebook and requested the bench to read it. After reading it, the court explored if it should hear Hadiya first or go into the document. Divan mentioned that PFI is an outfit formed by those who belonged to Students Islamic Movement of India (SIMI) after it was banned, and Sathya Sarani where Hadiya was forced to convert was a centre run by PFI.    Divan's argument was supported by Additional Solicitor General Maninder Singh who appeared for NIA.  

Senior Advocate Kapil Sibal appearing for Hadiya objected to the arguments of both lawyers.  He said, “I can give a communal response to this communal argument. I am saddened that instead of going straight to the point and asking the adult what she wants, this is being allowed ". Sibal also went on to question the relevance of the audio recording cited by Shyam Divan asking, “Who is this person? Who recorded it? Whose voice it is ? How is it relevant to this case? Why is it being put here? Why do you want to communalise the State of Kerala?”

Sibal also questioned the argument against giving Hadiya her due autonomy. He contested the applicability of parens patriae  (legal term for legal guardian, normally appointed by the state to protect persons who are legally unable to act on their own behalf). He said, “Let us forget everything. The lady has a right to be free. Parens Patriae is only with respect to children and lunatics”

Sibal then proceeded to state that Hadiya should first be heard in open court and if the Bench, then, wants to talk to her in chamber, it could do so.

When the bench sought the opinion of the counsel of Kerala government as to whether the court should examine the documents first or hear Hadiya first, the counsel V Giri, to the surprise of many, replied that the documents should be examined first, which supported the case of Ashokan's and NIA's lawyers, but he added that it was his personal opinion. But Kapil Sibal countered the arguments and went on to quote another Kerala High Court judgment of inter-religious marriage wherein the Court observed all marriages should not be viewed with communal angle so as to cause disturbance in the society.

“The moment I start arguing about the seven cases [against Satya Sarani], indoctrination etc., things will get communal.  This is not preventive detention. This is unlawful custody. She has not committed any crime. If I [husband] have committed any crime, investigate me. But why interfere with the woman’s liberty?”

After a long and apparently vexing time, the court suggested an adjournment till Tuesday to reflect on the issue.   However, advocate P.V. Dinesh, appearing for Kerala State Women's Commission, intervened to say,  “This lady has been standing here for over an hour. She understands English.  She is a doctor. She has been called several names by those here. It will be now unfair, if she is not given a chance to speak for herself,” Mr. Dinesh told the court.     He also pointed out that the chairperson of State Women's Commission was not allowed to meet Hadiya whereas,   National Women's Commission chairperson was allowed. After this,  Hadiya was asked by the Chief Justice to come forward to have her say. 

The court asked her in detail about her past life and her future plans including schooling,  institutions and college studies,  appearing also to ascertain her mental stability which her father's lawyers had argued she lacked.

The Chief Justice of India, Dipak Mishra further asked Hadiya if she wanted to continue her studies on state's expense to which she replied, "I want to but not on state's expense when my husband can take care of me". 

By 5.30 pm,  the bench eventually reached their decision and dictated the order in which Hadiya was allowed to travel to her college in Salem and complete her house surgeoncy under the guardianship of the Dean of the College.