By Umair Azmi for TwoCircles.net
The case of Hadiya, who converted to Islam and married a Muslim youth, has been in the headlines for months. The order of the Kerala High Court annulling her marriage has been the subject of much commentary and criticism. But the passages quoted have been limited to those regarding a 24-year lady as a child. This article attempts to point out other problematic elements and inherent contradictions in the judgement.
What do the judgements say?
The overarching theme is one of smelling ‘conspiracy’ in every nook and corner. Actions that one would take place as a matter of course are given sinister colours. It appears that Hadiya had earlier come in contact with other Muslims, named Fasal Musthafa and Sherin Shahana, and had got an affidavit executed on 10.9.2015 declaring her conversion, and choosing the name ‘Aasiya’. Later she broke contact with them. This happened before she was supported by Sainaba. This earlier affidavit, in the eyes of the high court, becomes suspicion for a sinister conspiracy (p. 28). “Is it to create a confusion regarding her identity… Or has she been acting at the dictates of some others…” (p. 31), asks the judge, conveniently ignoring the fact that all the affidavits mention the declarant as “Akhila Asokan @ (New name)”. Hadiya repeatedly mentions her earlier her name in her petitions and affidavits, and impleads herself in cases where she is yet to be made a respondent; are these the actions of a person who wishes to “create confusion regarding her identity”?
Repeated references are made to the case of another girl, Athira (p. 17) who initially left home and claimed to embrace Islam and later retracted and went with her parents. This again, becomes evidence for conspiracy! Another repeated reference point is an earlier case, Shahan Sha A v. State of Kerala, where the same conspiracy theories of “forcible conversion” were at play. A fertile imagination betraying personal prejudices becomes the “evidence” for “conspiracies” elsewhere.
Same advocate? Conspiracy!!!
The court notes that “Ms. Akhila has appeared in this case through a lawyer… We place on record the fact that initially Adv. P.Sanjay and Smt. Parvathy Menon had appeared for Ms. Akhila… However, as per the records of this Court,… no vakalath was filed by the said advocates for Ms. Akhila. Subsequently, Sri. C.M.Mohammed Iquabal started representing Ms. Akhila…. Sri.C.M. Mohammed Iquabal has started appearing for Ms. Akhila without obtaining a no-objection certificate from the former counsel, which would have been necessary, had Adv. P.Sanjay and Smt. Parvathy Menon filed their vakalaths. There is no explanation forthcoming for the above discrepancy.” (p. 25). Legal experts may be able to throw more light on this, but the judge himself notes that no NOC was required, and yet treats its absence as some sinister act for which no “explanation is forthcoming.”
“It is interesting to notice that Adv. P.K.Ibrahim, the present counsel for the 7th respondent in this writ petition, was the counsel appearing for the petitioners in the said case.” (p. 31). Though not stated explicitly, the same advocate representing both Hadiya and Sainaba, becomes a point worth noting. One wonders whether courts take similar notice of advocates with a track record of representing politicians accused of corruption, murder, or other heinous crimes?
The fact of being represented by a counsel, an integral part of the judicial system, also assumes conspiratorial overtones! So does the matter of organisational support, in this case the SDPI. “The court was also worried about the source of income of the 7th respondent, since it was alleged by the counsel for the petitioner that she was only part of an organization that had unlimited financial resources.” (p. 11). “We also notice that the detenue has entered appearance through a counsel and has been contesting this matter on her own… We therefore, wanted the detenue as well as the 7th respondent to disclose their sources of income.” (21.12.2016, p. 7). “As we have already noticed above, the alleged detenue Ms. Akhila has appeared in this case through a lawyer.” (p. 25). “… it is worth noting that an expensive Senior Advocate is appearing for Ms. Akhila, who has only an income of Rs. 2000/- per month, while an Advocate of considerable standing is appearing for the 7h respondent.” (p. 37). “It is clear from the facts and circumstances of the present case, that neither Ms.Akhila, who is the alleged detenue, nor the other respondents in this case who are contesting the matter have any paucity of funds.” (p. 38).
Again, one wonders, are their lordships always concerned about where the resources come from when leading lawyers, who charge by the lakhs per hearing, appear as counsel in the courts? Or are their lord-ships outraged by the audacity of a convert to Islam to seek justice in the courts of law, when she should have walked to the altar like a meek lamb?
Do their lordships feel the need to act as accountants and auditors in every case, or is it again the result of the audacity of the supposed meek lamb?
The court was outraged by the marriage being conducted while “Court was kept totally in the dark regarding the said developments.” (p. 36). Sainaba “had a duty to at least inform this Court of the same, in advance.” (21.12.2016 p. 8). Regarding the advertisement on a matrimonial site, seeking appropriate matches, “Since this Court had reposed trust in her and had permitted Ms.Akhila to reside in her house, she had the duty at least to inform this court of the proposal that was admittedly being considered during the pendency of these proceedings.” (p. 43). Since when did it become necessary to obtain the court’s “permission” for conducting a marriage?
“In the first place, it is not normal for a young girl in her early 20s, pursuing a professional course, to abandon her studies and to set out in pursuit of learning an alien faith and religion. The normal youth is indifferent towards religion and religious studies.” (p. 34). Almost as a concessional favour, their lordships add “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.” (p. 34).
And how should one go about learning about a new religion? Once again, the commands of their lordships should be heeded. “Though the alleged detenue in this case 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. 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… Ms. Akhila only gives a vague statement in her affidavit that she had acquired knowledge about Islam by ‘reading Islamic books and also viewing interesting videos.’ What are the materials on the basis of which she had developed an interest in Islam religion is unavailable.” (p. 34).
A list of additions to the duties of the courts: to decide if you are “bright” enough to consider a new religion? To decide whether you have studied “enough” about the religion you wish to adopt. To decide if the videos you have watched constitute sufficient “justification” to adopt a new religion, for why else would their lordships be so concerned about “vague statement” regarding the “nature” of content?
Perhaps the courts will also decide whether your looks are compatible with conversion to a new religion. Who knows? After all their lord-ships never said that this list is exhaustive.
Khaps, anglicised
“Our interaction with the detenue when she was brought before us, gives us an impression that, she is only an ordinary girl of moderate intellectual capacity. She appeared to be repeating verses and quotations in Arabic that she has apparently memorized. According to the Police, and the Senior Government Pleader, she has been made to believe that she would go to hell if she did not accept Islam and is under such a belief. She also appears to be a gullible person. A hostility to her parents also has been instilled into her. It could also be that, she is under some sort of compulsion that is binding her to the 7th respondent and others who are controlling her. She has not impressed us as a person who is capable of taking a firm and independent decision on her own.” (p. 39). Perhaps only people who cross the threshold of “moderate intellectual capacity” are entitled to any rights or freedom.
“A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways. This Court exercising parens patriae jurisdiction is concerned with the welfare of a girl of her age.” (p. 50). Till what age is a girl weak and vulnerable? 24 years is the lower bound but as it has not been specified, it may be so till the end of life for all we know. And since you happen to be girls, perpetual children, the court may say “The learned Senior Counsel … submits that, since the detenue is present in Court this Court may interact with her and verify whether it was under the influence of anyone else or under coercion that her marriage was performed … We are not satisfied that it is necessary to interact with her at present.” (21.12.2016, p. 6).
Just as the colonial rulers deemed Indians to not be suitable for self-government, girls are not to be deemed suitable for even speaking their mind.
One of the orientalist stereotypes prevalent in the colonial era considered Indians as ‘half-child’ and ‘half-devil’. Perhaps inspired by them, the judges see young ladies as ‘half-child’ and ‘half-idiot’.
There is more. As part of the interim order on the date that Hadiya appeared with her husband for the first time, she was prohibited from using a mobile phone (21.12.2016, p. 8). There appears to be little daylight between the khaps and the High Court.
Would their lordships consider every lady in her 20s marrying against the will of her parents to be a child in need of being forced for her own good? “This is not a case of a girl falling in love with a boy of a different religion and wanting to get married to him. Such situations are common and we are familiar with them. In all such cases, this Court has been consistent in accepting the choice of the girl.” (p. 41). So it is not marriage itself that irks the court, it is conscientious conversion to Islam.
Much is made of Shefin Jahan’s failure to update his Facebook page with details of his marriage (p. 20) (Note to youngsters: henceforth, failure to update your Facebook can result in annulment of marriage.) and his facebook posts which “unmistakably show his radical inclination.” (p. 45). Perhaps a new prerequisite for marriage: an absence of “radical” inclination. As he has a criminal record relating to some college fight, “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.” (p. 45). Are we to understand that one who is an accused is not to be permitted matrimony? That would result in condemning almost the whole political class to bachelorhood (or spinsterhood)!
Conversion = force
The conversion and marriage of a lady becomes a matter of “national interest” (p. 32) which must be “investigated”. The underlying prejudice is that of considering conversion as a crime. Or to state it more accurately, considering conversion to Islam as a crime. In referring to the case of Athira, the court states that she “had been forcibly persuaded to embrace Islam.” (p. 17). The arguments of the government pleader, as recorded in the judgement, consist of calling this a case of “forced conversion” based on Hadiya being fed “graphic details of hell and the torments that sinners are subjected to in their life after death.” (p. 18). In an act of devilish sophistry, force is correlated with persuasion. Merely stating the tenets of the faith regarding its beliefs on salvation, equals “force” in the dictionary of the government pleader (the representative of a communist government). The court seems to assent to this colourful understanding of “force”, which almost criminalises the mere enunciation of religious beliefs. The tragedy is that in this matter at least, this judgement is treading familiar ground, for past judgements on the question of conversion have been equally disturbing.
As precedent, the judgement is terrifying. What does one do when in a difficult situation but to accept organisational support? If one converts to a new faith, is it surprising for her to seek help from an organisation led by members of the new faith? And what does one do if not employ a legal professional when embroiled in a court case? These actions, which would be considered common sense responses, assume an air of conspiracy in the eyes of the high court. What intent could be behind such a judgement? Could it be to create such a chilling effect in the minds of minorities that they dare not even organise, nor dare approach legal institutions?
Perhaps the judges would have loved to institute an inquisition and bring in the stake to discipline Hadiya. Alas, this being the twenty first century democratic India, not medieval Europe, a veneer of “civilisation” has to be retained. Ordering her imprisonment – for that is the right word to describe Hadiya’s position – is to condemn her to mental torture, and possibly physical torture, all under the auspices of the high court. For all the hullabaloo of “forced conversions”, this is its classic example – imprisonment until she renounces her faith. But in the post-truth world, non-threatening words constitute “force”, imprisonment does not.
Such a judgement is the result of anti-Muslim prejudice which considers the whole Muslim community to be violent and dangerous. Only then does every act associated with Islam, be it conversion to the religion or marriage to a Muslim become associated with criminality.
The aftermath in the Supreme Court
The aftermath in the Supreme Court has shown that the High Court judgement was no rare aberration. For in response to a petition seeking relief from the Supreme Court, an investigation under the National Investigating Agency was ordered. It is official, from the highest judicial body – conversion and marriage are now matters of “terrorism” and “national security”. And for those who dare wonder as to how that is so, beware! For it indicates that you do not “desire the correct and independent view of the controversy to emerge before this Court.” (10.08.2017, p.3). In effect, this meant sanction for continued denial of freedom to Hadiya.
On 30 October 2017, the Supreme Court finally ordered that Hadiya be produced in Court. While it is tempting to consider this a positive development, by setting the date for producing the lady to 27 November 2017, the court has in effect extended Hadiya’s imprisonment for a month apart from giving her family further opportunities for physical violence. But in an environment where the National Investigating Agency, in true bigoted fashion, can argue that “in a case of the present nature when there is material with regard to a pattern of indoctrination, the choice of the person should not be treated as absolute” (30.10.2017), perhaps one should be thankful for small mercies.
Will the might of the Indian government and judiciary succeed in breaking the spirit of a young lady? Or will the supposed “ordinary girl of moderate intellectual capacity” show every state institution their place? November 27 will be a day of reckoning.
*Note on the references: References to the final order of the Kerala High Court are given as paragraph numbers. Other orders are referred by the order date and paragraph.
The author holds a masters degree in engineering from the Indian Institute of Science, Bangalore.