Supreme Court Finally Acknowledges Hadiya’s Autonomy
Supreme Court of India finally asked the question they were supposed to ask five months ago.
Supreme Court of India finally asked the question they were supposed to ask five months ago.(Photo: Harsh Sahani/The Quint)

Supreme Court Finally Acknowledges Hadiya’s Autonomy

“The sole issue here is whether the High Court can annul the marriage of two adults in exercise of its jurisdiction under Article 226.”

With these words, the Supreme Court of India finally asked the question they were supposed to ask five months ago, when Hadiya’s case was first brought before them. And once they did this, they finally started asking the other important questions; most importantly, why the courts were meddling in the entirely legitimate decisions of an adult woman.

Der aaye, durust aaye, as they say.

Also Read: Hadiya Case: SC Says NIA Probe Cannot Affect Validity of Marriage

Till Today: All the Wrong Questions

We’ve been pointing this out since that first day in August 2017, when then-CJI JS Khehar decided to order an NIA probe into the allegations of ‘love jihad’ that had been raised by investigating agencies and Hadiya’s father.

This made little sense since the case was an appeal against the Kerala High Court’s judgment annulling Hadiya’s marriage to Shafin Jahan, which arose out of a petition by Hadiya’s father. Marriages cannot be challenged by third parties, so it was obvious that all these allegations were irrelevant, and the Supreme Court should have struck down (or at least stayed) the Kerala High Court’s judgment right at the outset.

Unfortunately, the Supreme Court did not do this, and the investigation plodded on through multiple hearings – despite ignoring the Court’s order for it to be supervised by a retired judge. It also looked like current CJI Dipak Misra was fine with waiting for the investigation to finish before making a decision on Hadiya’s freedom, or the validity of the marriage.

In November, the Court finally realised that it was wrong for Hadiya to be kept at her parents’ house against her will (as ordered by the Kerala High Court) and, after briefly consulting her, had her taken back to college to complete her course. Again, the Court failed to acknowledge her autonomy, and that her marriage choices could not be interfered with, even if (and this isn’t even the case) Shafin is a terrorist.

Also Read: The Supreme Court Has Failed Hadiya – And Maybe The Rest of Us Too

The Tide Turns: The Judges Finally Get it Right

The whole sordid affair looked set to continue again today, with the NIA slated to give their latest update, but good sense (and the law) finally prevailed.

CJI Misra got the ball rolling when the NIA started talking about what the NIA investigation was going to do going forward, informing them that their investigation would not have any bearing on the status of the marriage.

She has told us she got married. She can choose independently, she is 24 years old. If an adult says she is married out of her own free consent, how can one contest that marriage?
Chief Justice of India Dipak Misra

Advocate Madhavi Divan argued that this was incorrect since the marriage was “merely a device to legitimise her illegal confinement”, done after the Kerala High Court had started looking into the matter. But Hadiya’s parents had filed the original case as a habeas corpus petition when Hadiya had decided to convert to Islam and move away from them – all of which took place months before the marriage between Hadiya and Shafin.

These arguments had been cutting the mustard till now, but not anymore, and Justice Chandrachud was having none of it. Live Law reports that he responded to this by saying:

“You may be right that the marriage is solely a device. But once Hadiya says that she is married, we cannot question the legitimacy of her choice. How can the writ of habeas corpus be issued in respect of an adult?”

Divan tried to argue that this was not an ordinary case where two people met and agreed to get married, but CJI Misra had finally realised how dangerous it was to allow this reasoning to stand:

“She has taken an independent choice [as an adult], she is 24 years old. Marriage has to be separate from the aspect of criminal activity. Otherwise we will be creating a bad precedent in law. We cannot go into the marital status.”

After all, if the Court had allowed the old line of reasoning to continue, it would have meant that parents could start filing cases in the courts whenever they were unhappy with their adult children’s decisions, and that despite lacking any legal basis for doing so, the courts could interfere with those decisions. The autonomy of women in particular would be in jeopardy from this, though this precedent would have affected us all.

Also Read: Why YOU Should Be Furious About the Courts’ Treatment of Hadiya 

The NIA and Hadiya’s father have consistently tried to argue that Hadiya was incapable of making her own decisions despite being an adult, and so, when she says she wasn’t forced to convert, or that she wasn’t being held against her will, or that she wasn’t forced to marry, these statements couldn’t be relied on. The Kerala High Court agreed with this balderdash and on this basis decided to annul her marriage and confine her to her parents’ house.

This argument of doing things for Hadiya’s welfare was, blessedly, rubbished by the Supreme Court today, who said that Hadiya had come before them and the High Court and nothing seemed to show that she was “mentally or intellectually insufficient” as her father was claiming. Contrary to the NIA’s far-fetched claims, the Bench therefore categorically stated that “We cannot see how she has been brainwashed. We cannot interfere.

What Happens to the Marriage?

So where does this leave Hadiya, and Shafin?

Despite saying all these very encouraging things, and openly questioning the Kerala High Court’s ability to annul the marriage, the Supreme Court still didn’t overturn what was done, and didn’t even temporarily stay the annulment. As a result, their marriage is still invalid in the eyes of the law.

This is still a problem, but at least the whole thing is progressing in the right way. The annulment was not overturned just yet, but the judges’ observations show that is on the cards.

Most importantly, apart from all the moments discussed above when the judges affirmed the importance of Hadiya’s autonomy, they also recognised this in a more tangible manner. At the request of Kapil Sibal, Shafin’s lawyer, they have also impleaded Hadiya as a party to the case. This may sound jargon-heavy, but can be explained quite simply.

Whether in the Kerala High Court or the Supreme Court, throughout all of this, Hadiya has not herself been a party to any of this. It’s been her parents, the people they think are trying to brainwash her, the Kerala police, the NIA, her husband, everyone else, but her.

But not anymore.

On 22 February, Hadiya is finally going to be able to put her side of the story forward (in her own affidavit and pleadings), because the judges have finally realised how this is all that matters in this case – her decisions, her choices, and whether she made them of her own free will. And she is the only one who can attest to that.

Also Read: If Hadiya’s Story Was a Bollywood Movie, Media Would be Mogambo

What is the Significance of Today’s Events?

It’s come really late, but by doing and saying what it did today, the Supreme Court has done two important things.

  1. First, it has clearly reiterated and recognised the importance of an adult individual’s autonomy to make their own decisions (as long as they aren’t illegal) without any regard for the opinions of their parents, society, or even the NIA. This is obviously of greater importance for women, who find their decision-making constrained even after attaining majority.
  2. Secondly, it has underscored that unfounded nationalist considerations cannot be used to get around the law – in this case, the whole love jihad angle was being used to paper over the fact that procedurally, the annulment could not have taken place. This should send a strong message about the primacy of the rule of law, and stop courts, the police and politicians from using these kinds of cases to further their own political objectives.

We can only hope that next time, it doesn’t take so long for the guardians of our civil liberties to realise the obvious and safeguard our freedoms. And that after the next hearing comes around, and Hadiya puts her statements on record again, the Court will restore her marriage, and end this meddling in her life once and for all.