Day 6 Arguments

November 27th, 2017

On November 27th, 2017, the Supreme Court continued hearings before the three judge Bench of Chief Justice Dipak Misra, Justices D.Y. Chandrachud and A.M. Khanwilkar. In the previous hearing on October 30th, 2017, NIA and Hadiya’s father had contended that she couldn’t be allowed to live with her husband, Mr Shafin Jahan, as her consent to marriage was coerced and part of a larger Islamic conversion agenda. However, the Court had directed Hadiya to be present in Supreme Court. Today’s hearing was one of the most important with Ms. Hadiya testifying in open Court. It must be noted that it was after a lapse of three months that the Supreme Court is hearing Ms. Hadiya on her choices

Ms Hadiya appeared in the Court to testify if her marriage to Shafin Jahan was voluntary. Mr Shyam Divan appeared for Hadiya’s father and Mr Maninder Singh, ASG, appeared for the NIA. On the other side, Ms Indira Jaising and Mr Kapil Sibal appeared for Hadiya’s husband, Shafin Jahan.

Mr Divan urged the Bench to conduct the proceedings in-camera. He cited the following reasons:- first, the task of probing into this could be best achieved in camera; second, an open hearing would contribute to this becoming a very communally charged issue; and third, he suspected that playing of the inciting videos and recorded transcripts by the members of the Popular Front of India could lead to violence.

Mr Maninder Singh, ASG,  submitted the NIA Report to the Bench. He argued that Hadiya’s narrative of meeting her husband on a matrimonial site was false according to the NIA Report. CJI enquired if Mr. Singh wanted an in camera proceeding.  Mr. Singh responded that he was only concerned with the findings of NIA and he left the manner of proceedings to the Bench. Alluding to the NIA Report, he said that Kerala Police had handed 89 cases of suspected indoctrination to NIA which it was investigating. He requested the Bench to look at the larger issue of indoctrination before deciding the individual instance of Hadiya.

Mr Kapil Sibal interjected that he was saddened that the Court was giving serious consideration to the materials without interacting with the adult. He said that Hadiya had the right to marry whoever she wished and the Court should not decide on her behalf. The parens patriae jurisdiction (right to decide on someone else’s behalf) of the Court cannot be triggered unless the person is a minor or lunatic.

Chandrachud J interjected by enquiring whether the Court’s decision on the issue of indoctrination would have a bearing on Hadiya’s choice of marriage. Mr Sibal argued that there was a need to delink the issue of individual’s choice of husband with the larger issue of religious indoctrination. Chandrachud J further asked – at what stage could the court venture into the question whether the autonomy of an individual was broken? Mr. Sibal answered that the court could not interfere unless there were overwhelmingly persuasive arguments to break the autonomy of an individual. Chandrachud J observed that there could be a situation where a person was neither lunatic nor minor, but still there consent could be vitiated due to Stockholm Syndrome. Mr. Sibal responded that the Bench should start by interacting with Ms. Hadiya, and then look at the NIA evidence if anything appeared suspicious.

The Court then asked Ms Hadiya to take the stand for testimony. Mr. Giri, senior advocate for the State of Kerala assisted the Court in translation. Chandrachud J asked Ms Hadiya about her dreams for the future. Ms Hadiya replied – “I want freedom. I should be released.”

The CJI enquired if she would want to continue her studies at the expense of the state, to which she responded that she wishes to continue her studies, but at her husband’s expenses and not the State. She also added that she would want her husband to be her guardian. Justice Chandrachud responded that wives are not chattel that they would need a guardian. He also mentioned that the husband could not stay in the hostel with her. At this point, Hadiya volunteered to speak – “I am mentally harassed at my home. I don’t want to go back to home. I want to go with my husband”.  CJI responded that the Court was not asking that question.

The Court directed her to go back to Salem to pursue her studies and appointed the Dean of the University to be her local guardian. The matter has been posted to be heard in the third week of January.