High Court’s contradictory orders on adult women’s right to marry  

In May this year Kerala High Court annulled the marriage of Akhila Ashokan alias Hadiya (24) on the ground that she may have been brainwashed to convert to Islam and marry a Muslim man. The ruling was given by Justices Surendra Mohan and Justice Abraham Mathew.

In July another bench of the same high court ruled that an adult woman had the right and freedom to choose a partner, even if he has a criminal record or is mentally challenged. Parents, ruled Justices AM Shafique and Anu Sivaraman, could dictate their choice to their children till they remain minors. Once the children become ‘majors’, the court ruled, their own choice would prevail.

In Hadiya’s case, the Supreme Court has refused to stay the annulment of the marriage; instead it has asked the National Investigation Agency (NIA) to find out if the young woman had actually been indoctrinated and if she planned to join the Islamic State.

The Supreme Court ordered the NIA to investigate the case under the guidance of retired Supreme Court judge R V Raveendran but did not give a time-frame for the investigation to be completed. While the apex court also ordered the retired Justice to be paid a handsome amount as per diem by the Kerala Government, it also said in its order that it would eventually like to hear Hadiya’s version in their chamber before giving the final order.

Legal experts have already been frowning on the apex court’s ruling. Why couldn’t the apex court summon the woman now and hear her first, they wondered. Some experts are also uncomfortable with the precedence set by the court.

In her affidavit Hadiya, the name she assumed after conversion, stated that she had left home on her own and she had been practising Islam for the past three years, long before she married Shafin Jahan in December, 2016.

“I am an adult and have taken a decision to follow the religion of Islam, which I have been holding close to my chest for the last three years. I will have no freedom to practice my religion and such practice at home will only invite more hatred from parents and all other relatives which I have already experienced. It is a question of protecting one’s fundamental right and nobody for that matter, even the (sic) parents can interfere,” said Akhila in her affidavit submitted before the Kerala High Court on January 19, 2016, in response to the habeas corpus petition filed by her father.

Akhila, who has completed her Bachelor of Homeopathic Medicine and Surgery (BHMS) from Salem in Tamil Nadu, has stated that she had doubts about the concept of multiple gods in the Hindu faith and confusion as to which of the Hindu gods she should be praying to. “The ideology of one God propounded by Islam started appealing to my mind as more logical. I started following Islam since last three years without formally announcing my change of faith,” added Akhila in her affidavit.

She also explained that while in Salem, she was staying in a rented house with her friends, three of whom, namely Archana, Dhilna and Divya were Hindus and two others, Jaseena and Faseena happened to be Muslims. Akhila stated that she was impressed by the timely prayers followed by her Muslim friends and their good character. This was the beginning of her interest and to understand the religion she read Islamic books and watched videos.

She also said that her grandfather’s death in November 2015 and the funeral rites caused her “deep mental agony” and she resolved to become a Muslim so that in future she would not have to get involved in such rituals. She stated in her affidavit, that her father, being an agnostic, had also kept away from the rituals.

“The complaint by the petitioner (her father) is false and it was intended to harass me and my friends,” Akhila had submitted to the Kerala High Court. She now has to convince the NIA, Justice Raveendran and the Supreme Court that she did not give the statement under duress.