After a three-judge bench of the Supreme Court, led by Chief Justice of India Dipak Misra, on Monday interacted with Hadiya, the 24-year-old Kerala Hindu woman Akhila who converted to Islam and married a Muslim man, who is being accused by the National Investigation Agency of playing a part for a criminal ring to convert Hindu women to Islam through “love jihad”, she was permitted by the court to return to Tamil Nadu to complete her homeopathic medicine course there.
This is a major step. Hadiya’s father K.M. Asokan’s case rested on the argument that his daughter wasn’t mature enough to take a decision as far-reaching as changing her faith and marrying a man of the new faith. On this ground he sought his daughter’s custody and annulment of her marriage to a Muslim. The Kerala high court granted both. Instead of going with her husband Shafin Jehan, Hadiya had to go to her father’s home. This Kerala high court order was challenged in the Supreme Court by Mr Jehan. At first, the apex court ordered a NIA probe into the “love jihad” angle with then CJI Justice J.S. Khehar presiding.
The order appeared to give precedence to the security angle above personal liberty and the prerogative of an individual of marrying someone of one’s own free will, instead of separating the two and examining the security-related allegation on its merits. On attaining adulthood, parental permission is not a legal requirement for marriage. On this ground alone, legally speaking, the conversion and marriage of a Hindu woman to a Muslim (or vice versa) can’t be objected to.
Upon Justice Khehar’s retirement, his successor Justice Mishra had Akhila/Hadiya summoned to the court to examine and ascertain if she was sound of mind and capable of making well-considered decisions. The court permitting the young woman to return to pursue her studies and leave her father’s home, to which she was confined for the past 11 months, is revealing. It suggests her mental faculties are deemed to be in order.
The issue of the validity of her marriage with Mr Jehan, the court said, will be taken up in January. Under the law, the court cannot disallow the marriage. The RSS-BJP has been carrying on a social and political campaign on the “love jihad” issue. We hope judicial wisdom will prevail.
Since the NIA believes, whether under RSS pressure or otherwise, that the conversion and marriage of Akhila/Hadiya is a farce as Mr Jehan is involved in criminality, the court has quite rightly permitted the investigation into “love jihad” to continue. Whatever it may turn up, in principle, a person can’t be punished for falling in love and marrying a criminal. In this case, Mr Jehan must be punished if a criminal nexus around “love jihad” is proved. But the marriage can only be dissolved through formal court proceedings.
