A re-reading of Kerala HC decision on Hadiya case in light of SC verdict

Written by KV SREEMITHUN

The Supreme Court’s verdict setting aside the Kerala High Court order of annulling Hadiya aka Akhila’s marriage, which, it found as a sham to defeat the process of law has again brought the focus back to the case.

Akhila’s father has stated that he would be filing a review before the apex court the case would again grab the attention of the whole country and it is worthwhile to look into the circumstances in which the Kerala High Court annulled the marriage.

The facts indeed are glaring and stranger than fiction, as the verdict by the HC thereby annulling the marriage invited the wrath of the fundamentalist elements against the Judges, they gheraoed the Kerala High Court and threatened the judges to be dragged on to the roads thereby following an unheard course in the much acclaimed Kerala society.

Under the aegis of the Muslim Ekopana Samiti, they warned the judges Justice Surender Mohan and Justice Abrham Mathew of dire consequences for annulling the marriage of Hadiya with one Shafin Jahan whose antecedents the court found suspicious. The HC had made the following observations before annulling the marriage apart from conducting a thorough inquiry by the police and threadbare analysis of facts.

This court exercising its Parens Patriae jurisdiction is anxious and concerned about the safety of the detenue and her well-being, viewed especially in the light of the allegations made in the Writ Petition and the continued obstinance of the detenue to return to her parents. The person who is stated to have got married to the detenue has appeared before us today, for the first time. He claims to be a graduate and a person who is employed in the Gulf. It is stated that, he is desirous of taking the detenue out of the country. It was precisely the said apprehension that was expressed by her father in the proceedings before this court on the earlier occasion. This court has on the said occasion recorded the fact that since she was not possessed of a passport, there was no likelihood of her being taken to Syria. The question that crops up now is whether the marriage that has been allegedly performed is not a device to transport her out of this country.”

The father of the girl had approached the HC with allegations that his only daughter is being planned to be taken to Syria to join the dreaded terrorist organization, Islamic State.

Akhila was Ashokan’s only child whom he had sent to Salem in Tamil Nadu to pursue her BHMS in Shivraj Homeopathy College wherein she developed friendship with two girls who were Islamists. Ashokan’s legal battle started when Akhila went missing on January 6, 2016 when she was taken away without informing Ashokan. He approached the police and consequently Crime no 21/2016 U/s 57 of the Kerala Police Act was lodged and later on, Sec 153 A, 295 A, of IPC were invoked and one Aboobecker was arrested. But Akhila could not be traced and Ashokan approached Kerala High Court by filing a haebeas corpus W.P. Crl No. 25/2016.

The court gave directions to trace out Akhila on January 14 and on January 19 Akhila appeared in person before the court and filed an affidavit thereby stating why she left her home. She had sworn before the court that she was doing her house surgency course at Shivraj Homeopathy College at Salem after completing the course (the court found this fact false as she had not joined the house surgency as claimed before the court). She further stated that she stayed in a rented house along with her friends and got impressed by their faith in Islam. She also stated about the concept of many gods and the confusion to which god to pray to and her appeal to Islam which propounded one-god concept. She again told that in the month of November 2015 her grandfather expired and the relatives compelled her to perform the last rites and rituals which caused much mental anguish to her which led her to become a Muslim. She left her home for her friend Jaseena’s home where the latter’s father Aboobecker took her to Sathyasarani, an Islamic Conversion Centre, who asked to bring in an affidavit. But it was stated by her that Aboobecker did not permit her to stay back at his home and sent her Salem.

On January 6, 2016, Akhila went to her college wearing a head scarf, thereby proclaiming her change of faith to the public. She came back to Aboobecker’s home and informed Satyasarani that she wants admission on January 7 itself and she is staying in Jaseena’s home. Satyasarani in turn brought in one Sainaba to guide Akhila. The court on January 19 interacted with Akhila and thereafter allowed her to go with Sainaba and reside with her and on January 25 the writ petition was disposed of permitting Akhila to reside at the place of her choice i.e. Satyasarani at her free will. Her family was allowed to meet her.

Thereafter Writ Petition 297/2017 was filed on August 16, 2016 expresing apprehension that Akhila in all likelihood was to be taken out of India and the case is a matter of forcible, deceived conversion to Islam. The court passed an interim order on August 17 directing the respondents to keep Akhila under surveillance and to ensure that she was not being taken out of India. The court smelt a rat on August 22 when the Investigating Officer present in the court informed the bench that Akhila was removed to an undisclosed destination before the police reached Sainaba’s house and the case was adjourned to August 25 for production of Akhila. Soon after the case was adjourned, the Additional Director General of Prosecutions mentioned the matter before the judges and informed that Akhila along with Sainaba has come to the court. The judges interacted with Akhila who informed the court that she came under the influence of Islam and has converted after undergoing a course in Satyasarani.

Akhila declined to go along with her parents and wanted to continue her stay with Sainaba. The parents of Akhila staunchly opposed this as she was missing for one month and should not be allowed to go with Sainaba, the 7th respondent in the habeas corpus petition. The court directed to accommodate Akhila in a ladies’ hostel at the expense of her father Ashokan and a thorough investigation was ordered and the stay in the said hostel was periodically extended keeping in view of the pending investigation by the police to unravel the facts behind her sudden disappearance. It’s worthwhile to mention that the prime concern of her parents was regarding the attempts to take Akhila to Syria to make her join the ISIS.

On September 27, 2016, the case came up before another division bench and Akhila refused to go with her parents. She submitted a statement before the court saying she was facing harassment being in the custody of the court and further stated that she was not issued a passport hence there was no likelihood of she being taken to Syria.

 “After hearing learned counsel on both sides, we are of the opinion that in the light of the finding entered by this court in the earlier round of litigation that this court cannot compel the petitioner’s daughter to go and reside with her parents and that she is not in the illegal custody of anyone, this court cannot any longer direct that the petitioner’s daughter should continue to reside at Santhinikethan Hostel, Pachalam. When we asked the petitioner’s daughter as to whether she is willing to appear on another day, she submitted that she will appear on the next hearing date. Learned counsel for the detenue also submitted that the detenue will be present in person on the next hearing date. We accordingly permit the detenue to reside at a place of her choice. We also record the statement of Ms. Akhila that she proposes to reside with the seventh respondent, Smt. AS Sainaba, whose address is mentioned in the instant writ petition. Sri PK Ibrahim, learned counsel appearing for the seventh respondent, submitted that the seventh respondent will cause production of the petitioner’s daughter on the next hearing date, if she proposes to reside with her. If the petitioner’s daughter proposes to shift her residence and to reside elsewhere, we shall inform that fact to the Deputy Superintendent of Police, Perinthalmanna in writing and furnish her full residential address and the telephone number if any over which she can be contacted. Call on 24.10.2016. The Deputy Superintendent of Police, Perinthalmanna shall cause production of the petitioner’s daughter on that day. It will be open to the parents of Ms Akhila to meet and interact with her. Accordingly, Ms Akhila was permitted to reside with the 7th respondent.”

On November 14 when matter came up before the court serious apprehensions were expressed with regarding to the residing of Akhila with Sainaba. The 7th respondent in the writ petition Sainaba and her husband  was thereafter directed to submit an affidavit and produce ration card as it was submitted that she belonged to an organization having unlimited financial resources. On December 19, the court noted that Akhila who was sent to pursue her studies had not completed her course and her counsel submitted she was willing to reside at her college and complete the House surgency. The court passed the following order in the best interest of Akhila.

The petitioner who was present in Court offered to bear the expenses for her education and stay at the Hostel. Therefore, we passed the following order: “We have heard the learned Senior counsel Sri S Sreekumar, who appears for the detenue. We have perused the affidavit dated 26.11.2016 filed by the detenue producing documents, Exts.R8(d) and R8(e). We are not prepared to rely on Ext.R8(d) which purports to make it clear as though a registered Homeopathic Medical Practitioner has permitted the detenue to work as a trainee in Homeopathic Medicine on a remuneration of Rs.2000/- per month for her day today expenses. We fail to understand how the detenue, who has not obtained a degree in Homeopathy can be permitted to train under him. The detenue has admittedly not completed her House Surgeoncy or obtained eligibility to practice. Therefore, it is only appropriate that she completes her House Surgeoncy without further delay and obtains eligibility to practice Homeopathic Medicine. Her Senior counsel Sri.S.Sreekumar informs us that, the detenue is desirous of completing her House Surgeoncy. However, we place on record our dissatisfaction at the continued residence of the detenue with the 7th Bar & Bench (www.barandbench.com) W.P.(Crl.)297/2016. 18 respondent, who is a stranger. The counsel for the petitioner also expresses anxiety and concern at her continued residence with the 7th respondent. He is anxious about the safety and well-being of the detenue. His anxiety and concern as the parent of an only daughter is understandable. Therefore, it is necessary that the detenue shifts her residence to a more acceptable place, without further delay. According to the learned senior counsel Sri S Sreekumar, she has to complete her House Surgeoncy at the Sivaraj Homeopathic Medical College, Salem. The college has a hostel for girl students where she is willing to reside and complete her House Surgeoncy. The petitioner offers to bear the expenses for her education and stay at the Medical College Hostel. He offers to escort her to the Medical College and to admit her into the Hostel there. The detenue is also, according to the learned Senior counsel, willing to accompany her. 2. In view of the above, there shall be a direction to the detenue to appear before this Court at 10.15 a.m on 21.12.2016. The petitioner shall also be present in person in Court on the said date. The petitioner who is stated to be in possession of the certificates of the detenue shall bring such certificates also to Court. We shall pass further orders in the matter, regarding the manner in which the detenue is to be taken to the Medical College and admitted to the ladies hostel.

. Post on 21.12.2016.”

The Hon’ble Court further observed It is necessary to mention at this point of time that the order on 19.12.2016 was passed considering the best interests of Ms.Akhila, who had abandoned her studies at a point of time when she was on the verge of acquiring a respectable professional qualification. The concern of the father was in ensuring that his daughter acquired a professional degree as early as possible so as to make her self sufficient or independent.

    The sequence of events took a dramatic turn from here onwards, which could be one of its kind in independent India’s judicial history i.e. on December 21. To the shock of the parents and the court, Akhila appeared along with a stranger. It’s pertinent to mention that the court was all set to send her to her college so that she could revive her house surgency and complete the course. Her father was also directed to bear the expenses and to bring her certificates which was for her best interest. On being questioned it was informed to the Hon’ble Court that Akhila got married on 19.12.2016 according to Muslim rites with a stranger. The marriage was performed by the Khazi of Puthoor Juma Masjid at the house of the 7th Respondent Sainaba with whom the Court had permitted Akhila’s stay. The Hon’ble High Court was perturbed and concerned at the subterfuge practiced. The Hon’ble Court had posted the matter on 21.12.2016 to send Akhila to complete her studies and was utterly disturbed by the move of the smart players who wanted to desist the move of the Hon’ble High Court of Kerala which was exercising its Parens Patriae jurisdiction over Akhila.   ……………………

In High Court’s own observation, the marriage of Ms. Akhila was a totally unexpected event, we perused the documents produced before us, noticed the discrepancies therein, noted the necessity of ascertaining the veracity of the statements made, and recorded our dissatisfaction at the manner in which the entire exercise was accomplished. This Court noted in the said order that not even an indication of the marriage was given to us at the time of passing the order dated 19.12.2016, though the alleged marriage was also on the same day. We also expressed our dissatisfaction at the conduct of the detenue, the 7th respondent and others, who were involved. We wanted the antecedents of the bride groom to be enquired into by the Police. We passed a detailed order recording our dissatisfaction and directing the detenue to be accommodated at a ladies hostel until a proper investigation into the matter was completed.

The Hon’ble High Court was made fervent queries to unearth the depth of conspiracy and what unraveled was beyond the imagination of a judicious mind ….Court observed  today she is accompanied by a stranger and when questioned, we are informed by the learned Senior Counsel Sri.S.Sreekumar that the said person is her husband and that she had got married to him on 19.12.2016, according to Muslim religious rites.

 It is stated that, the marriage was performed by the Khazi of Puthoor Juma Masjid in the presence of guests and relatives of both the family as per Islamic shariat law at Srambikal house, Puthoor. Incidently, Srambical house is the residence of 7th respondent as disclosed from the Writ Petition.

The certificate is seen to have been issued by the Secretary of an organization by name Thanveerul Islam Sangham, Puthur, Kottakkal, Malappuram District. We do not understand who are the relatives of the detenue, who had attended the marriage.

The learned senior counsel Sri.S.Sreekumar explains that, only the relatives of the bride groom had attended and attributes the statement in the certificate to the loose expression of language by the person, who had issued the same.

We do not know what is the organization that has issued the certificate. It is not clear whether it is even registered. Whether it is only a paper organization alone, also requires to be ascertained. The certificate which is a photocopy dated 20.12.2016 is taken on file and shall be retained as part of the records of the case.

 The learned Senior Counsel has also handed over to us photostat copies of receipts issued by the Othukkungal Grama Panchayat on 20.12.2016, evidencing payment of money for registration of the marriage between one Shafin Jahan and Hadiya. However, the name that appears in the marriage certificate is Shefin Jahan. The name of the girl is mentioned as Hadiya, daughter of Akhil Asokan, which doesn’t make sense.

The identities of the persons who are referred to in the certificates require to be verified and ascertained with certainty, in the first place, apart from the genuineness of the organization that has issued the same.

We have questioned the petitioner who is present in Court. According to the petitioner, he has had no information about the marriage of the detenue. The Court noted the aforementioned glaring fcats which made it apparent that the marriage was nothing but a sham to defeat the process of the Court.

Now came the most startling revelation on the part of the Kerala Government’s pleader, who submitted that this marriage was hurriedly conducted after the orders passed by the High Court on 14.12.2016 & 19.12.2016. The Kerala Government’s pleader further made a shocking submission that the 7Th Respondent namely Sainaba with whom Akhila was permitted to stay was involved in another forcible conversion. In the statement made by the victim in the said case before 1 class Magistrate, Pattambi U/s 164 Cr.PC. in crime No. 510/2016 Cherpulassery Police Station, victim  stated one Sainaba had advised her to marry a Muslim, so as to avoid any interference by the Court. The Government pleader further submitted that the above said case is pending investigation and Sainaba mentioned in the 164 CrPC statement is none other than the present Sainaba who was the 7th Respondent with whom Akhila stayed. According to the Government pleader this was a case in which victim has been forced or misled into a marriage in accordance with Islamic Religious rites. It was also pointed out that, the so called marriage is only a ploy to defeat the present proceedings that are pending before this Court and to see that the detenue is not freed from the custody of the persons into whose clutches and influence she has fallen .

The High Court after hearing various contentions made the following observations which would reveal the concern of the Court as well as the depth of the Conspiracy which resulted in the sham marriage with the detenue who was in the protective custody of the Court to prevent her from being taken to Syria like many other cases which surfaced in Kerala where innocent people were hoodwinked and trafficked in the name of religion. The Court made following observations:

“We notice that, the marriage of the detenue that is stated to have been conducted, was on 19.12.2016, the date on which we had passed our order directing her to be produced before us today. We had also directed the petitioner to bring to Court all her certificates so as to enable her to obtain admission to the Medical College Hostel at Salem. It is in the above context that we are informed all on a sudden that she has got married. The entire conduct of the detenue, the 7th respondent and others who may have been involved leaves a lot to be desired. This petition filed by the father seeking the release of his daughter, by the issue of a writ of habeas corpus has been pending since 16th August, 2016. The detenue was residing with the 7th respondent as per an earlier order passed by this Court. This court exercising its Parens Patriae jurisdiction is anxious and concerned about the safety of the detenue and her well being, viewed especially in the light of the allegations made in the Writ Petition and the continued obstinance of the detenue to return to her parents. The person who is stated to have got married to the detenue has appeared before us today, for the first time. He claims to be a graduate and a person who is employed in the Gulf. It is stated that, he is desirous of taking the detenue out of the country. It was precisely the said apprehension that was expressed by her father in the proceedings before this Court on the earlier occasion. This Court has on the said occasion recorded the fact that since she was not possessed of a Passport, there was no likelihood of her being taken to Syria. The question that crops up now is whether the marriage that has been allegedly performed is not a device to transport her out of this country. We are not aware of the identity of the person who is alleged to have got married to the detenue. We are not aware of the antecedents of the said person or his family background. The address mentioned in the marriage certificate produced shows that he is from Kollam. In what manner he has come into contact with detenue and under what circumstances, the detenue has agreed to get married to a stranger like him are matters that require to be probed thoroughly. The marriage certificate shows that the marriage was performed by the Khazi at the house of the 7th respondent, Srambikal House, Puthur. Why the marriage was conducted at her house is not clear. Unless the above questions are answered, it cannot be accepted that the detenue is in safe hands. This Court exercising Parens Patriae jurisdiction has a duty to ensure that young girls like the detenue are not exploited or transported out of the country.”

 The Court further went on to observe that though the learned Senior Counsel has vociferously contended that the detenue is a person who has attained majority, it is necessary to bear in mind the fact that the detenue who is a female in her twenties is at a vulnerable age. As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married. We consider it the duty of this Court to ensure that a person under such a vulnerable state is not exposed to further danger, especially in the circumstances noticed above where even her marriage is stated to have been performed with another person, in accordance with Islamic religious rites. That too, with the connivance of the 7th respondent with whom she was permitted to reside, by this Court.

The High Court sensing deeper conspiracy in playing fraud on the Court directed the first respondent to escort the detenue and to have her accommodated at the S.N.V Sadanam Hostel, Chittoor Road, Ernakulam, until further orders. The first respondent shall ensure that she was not provided the facility of possessing or using a mobile phone. The petitioner and the mother shall be at liberty to meet her according to the rules and regulations of the hostel. No other person is permitted to meet her.

The first respondent shall cause an investigation to be conducted into the education, family background, antecedents and other relevant details of Sri.Shafin Jahan who is stated to be the bridegroom of the alleged marriage that is stated to have been conducted on 19.12.2016 as evidenced by the certificate dated 20.12.2016 produced before us. The first respondent shall also enquire into the circumstances surrounding the conduct of such marriage, the persons who were involved in the conduct of the same the organization that has issued the marriage certificate, as well as their antecedents.

The Secretary, Othukkungal Grama Panchayat is directed not to issue the marriage certificate sought for by the applicants Shafine Jahan and Hadiya as per receipt dated 20.12.2016, without further orders from this Court.

The Investigating Officer faced severe criticism of the High Court for not expediting the probe and the Director General of Police was directed to oversee the investigation and thereafter report was submitted by the Deputy Superintendent of Police dated 30.1.2017. As per his report, it was stated that the alleged marriage of Ms.Akhila was conducted with the active involvement of the 7th respondent and without informing her parents.

The court further made certain serious observations with regard to the lapses on the part of the Investigating Officer in following the specific directions issued by the court considering the seriousness and national interest involved in the case.

The court found the active involvement of external elements in the case and active and tacit support and organizational backing in conduct of the case especially the engagement of Senior Counsels who can’t be engaged unless there is sound financial backing. The Court found: “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. It is further clear from the facts and circumstances of the case that respondents 6 and 7 as well as Ms Akhila have had the support and active assistance of a number of persons at various stages, clearly pointing to an organizational backing. Ms Akhila is from Vaikom in Kottayam District, whereas the 7th respondent is from Kottakkal. Ms Akhila was studying at Salem in Tamil Nadu. In spite of these places being at considerable distance, Ms Akhila has had no trouble in travelling freely between the places both when she was a student and also after she had abandoned her studies. She is stated to have come to Ernakulam and met Smt.Sherin Shahana and her husband more than once. The question as to how she had found money for the said purposes, remains unanswered. She has had the support and help of a number of persons, throughout. The 7th respondent and their family with their modest income could not have borne the said expenses on their own. One common factor that links all the players in the transactions in this case is that, they are either members of the SDPI, the National Front or one or the other of its sister organizations. Even Sri.Shefin Jahan, who is alleged to have married Ms.Akhila, is an activist of SDPI. At any rate, there are sufficient materials available to justify a conclusion that there are forces acting from behind the curtains controlling Ms.Akhila and extending all necessary support to her. However, the Investigating Officer has not conducted any enquiry into the above aspect of the matter, nor has he made any attempt to probe the activities of the said organizations and antecedents. Since it is clear that, there are other players behind the scenes controlling Ms.Akhila, her case that everything has been at her instance, cannot be accepted. She has deliberately concealed her association with Sri Shanib, Smt Sherin Shahana and Sri Fasal Musthafa from this court. She has also been trying to play down the role of her friends Ms Jaseena and Ms Faseena and their father Sri Aboobacker.

The court further found that 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. Her conduct so far also supports our above view. She appears to be under the control of someone else. It is evident that she has been indoctrinated and influenced by persons whose identities have not been ascertained. An attempt is made in these proceedings to give an impression that all the other players involved have acted only on the request of Ms. Akhila. Such a story is unbelievable. The police authorities could have unearthed materials, had they probed the call details of Ms. Akhila. No such attempt has been made in the present case.

The court further concluded that there was another case of conversion of one Ms Athira investigated by the Circle Inspector of Police, Cherpulassery, Palakkad District, who had registered Crime No. 50 of 2016 and investigated the same, found that she had been influenced through continuous telephonic conversations. The 7th respondent in the present case is also said to have had connection with the conversion in the said case. It is stated that the 7th respondent herein had advised Ms.Athira to get married to a Muslim so as to avoid interference from court proceedings. In the said case, the perpetrators were arrested and the  proceedings are going on. The said writ petition has not been finally disposed of for the reason that, the main accused in the said case, one Sri.Noufal Kurikkal is still at large, remaining outside the country. The modus operandi adopted in both these cases are similar. The girls in both these cases belonged to middle class Hindu families. It was found on analysing the call details of the girl in the said case that, she had been contacted over her mobile phone for more than 600 hours during a short span of time, mostly at odd hours of the night, prior to her disappearance from home. In the said case also, the girl had initially refused to accompany her parents, but she later on realized her folly and has been reunited with her parents. The similarities between the two cases are clear and unmistakable. In the said case also, the girl had appeared in court on her own seeking to get impleaded as a party, as in this case. It is interesting to note that, the counsel for the 7th respondent in this case Sri.P.K.Ibrahim was representing her in the said case. This court can only express regret that the Investigating Officer in the present case has not sought the co-operation of the Investigating Officer in the said case in spite of the striking similarities. In view of the circumstances noticed above, it is absolutely necessary that a proper investigation that is comprehensive in all respects is conducted into these episodes to get at the truth.

It is very interesting to note how Kerala High Court made a conscious and judicious approach in dealing with the factum of marriage as the consent expressed by a major cannot be suspected or introspected into especially in case of a marriage but  the present case falls in an entirely different rarest of rare case category where the sacred institution itself was made a tool to play fraud upon the court and defeat the process of law thereby compelling the Court to step into a domain which otherwise is never subjected to scrutiny . The Courts intervention was warranted as national security and harmony in society both were at stake and non intervention would have resulted in severe damage to the nation. It is important to quote the High Court verbatim In the present case, we are now faced with the plea that Ms.Akhila has contracted a marriage. 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. However, the case here is different. It is an admitted case that this is an arranged marriage. Ms.Akhila had no previous acquaintance with Sri.Shafin Jahan. According to her, she had registered her name at a matrimonial site by name ‘way to Nikhah’. The marriage proposal had originated from Sri.Shafin Jahan in response to her profile that was available at the site. The case of the 7th respondent is that, she had, on the request of Ms.Akhila, acted as her guardian and her husband had given her in marriage in accordance with Islamic religious rites. 42. It is necessary at this point to notice the context in which the marriage has taken place. On 14.11.2016, we had expressed our dissatisfaction at the continued residence of Ms.Akhila in the house of 7th respondent, a stranger. Therefore, we wanted the detenue to produce proof of her qualifications and the 7th respondent to disclose her sources of income. Accordingly, Ms.Akhila has sworn to an additional counter affidavit on 26.11.2016 wherein she has stated that if her father returned her certificates, she could complete her House Surgeoncy Course. In her counter affidavit dated 24.10.2016 she has stated in very clear terms that her only desire was to complete her course and to serve the humanity in her own mother land. The 7th respondent has also sworn to an affidavit on 25.11.2016 disclosing her sources of income. Nobody had a case at that time that Ms.Akhila wanted to get married. It was relying on the said affidavit as well as the submission made by Sri.S.Sreekumar, the Senior Counsel, who was appearing for Ms.Akhila, that we passed the order dated 19.12.2016 directing Ms.Akhila to appear before us on 21.12.2016 for the purpose of directing her to proceed to her College along with the petitioner herein to complete her House Surgeoncy Course. The marriage of Ms.Akhila is also alleged to have been conducted on the very same day, 19.12.2016. It is clear that the alleged marriage is only a make-believe, intended to take the detenue out of reach of the hands of this Court. 43. This writ petition is dated 16.8.2016. In the writ petition, the petitioner has alleged that efforts were on to conduct a fake marriage of Ms.Akhila without her and free will to a Muslim associated with an extremist organization in order to hood-wink the Police and others and to transport her out of the country. If the statements of the detenue and the 7th respondent are to be believed, she had registered her name at the matrimonial site during April, 2016. The above fact substantiates the apprehension expressed by the petitioner in this case. The same now stands established by the marriage that is said to have been conducted. The marriage has been conducted, during the pendency of these proceedings, without even informing this court. The 7th respondent and her husband have therefore conducted themselves in a manner that is unacceptable on any count. 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. She along with her husband assumed the role of the guardian of Ms.Akhila with scant regard for the rights of the petitioner and his wife, who are the parents and natural guardians of Ms Akhila. They are alive. The petitioner is before this Court complaining that he apprehended the conduct of such a marriage. The conduct of the 7th respondent and her husband are therefore taken serious note of by this Court as an interference with the dispensation of justice by this Court. They have betrayed the trust reposed in them by this Court.

The court made a thorough study into the antecedents of the Shafin Jahan and found serious criminal background.

The 7th respondent and her husband had no authority to give Ms.Akhila in marriage to any one. Therefore, all their acts purporting to have done so are invalid and of no consequence. Though it is repeatedly stated that Ms.Akhila has got converted to the Islam religion, there is no document evidencing such conversion on record. The name which she is alleged to have chosen, according to an affidavit executed by her before Adv.Devy A.C., Advocate and Notary on 10.9.2015 is ‘Aasiya’. When she filed W.P.(C) No. 1965 of 2016, she described herself as Akhila Ashokan @ Adhiya. She has sworn to the pleadings in the said case and the affidavit in support of that writ petition in the said name. In W.P.(Crl.) No. 25 of 2016 she has sworn to affidavits describing herself as Akhila Ashokan @ Adhiya. In this writ petition, in her affidavits, she describes herself as ‘Akhila Ashokan @ Adhiya’. In Ext.R8(f), Ms. Akhila is described as ‘Hadiya’ and Sri Ali. S, the husband of the 7th respondent, is shown as her guardian. The said marriage request is alleged to have been registered on 17.4.2016. According to the 7th respondent, Ms Akhila met Sri Shafin Jahan only on 30.11.2016. In the alleged marriage certificate issued by Thanveerul Islam Sangham dated 20.12.2016 produced by the Senior Government Pleader along with a memo dated 19.12.2016, her name is shown as Hadiya, D/o. Akhil Asokan. It is clear from the above that, even regarding the identity of Ms Akhila, there is no certainty. When it was submitted in Court that Ms. Akhila had got married, we wanted the Investigating Officer to probe the antecedents of Sri. Shafin Jahan. He has also filed an affidavit which is produced and marked as Ext.R8(j). Sri. Shafin Jahan has admitted the fact that he was an active member of a party, Social Democratic Party of India, SDPI. He is also one of the administrators of WhatsApp group ‘SDPI Kerlam’ which is a WhatsApp group formed for the functioning of the political party. He is an accused in Crime No.2100 of 2013 registered alleging offences under Sections 143, 147, 341, 323, 294(b) read with Section 149 of I.P.C. which is pending before the Judicial First Class Magistrate. Security proceedings had been initiated against him, but was later on dropped. The materials posted by him in his face book have been produced as Exts.R8(k) to R8 (t). The posts unmistakably show his radical inclination. The learned Senior Government Pleader has placed before us the instructions received by him from the Investigating Officer dated 22.2.2017 wherein it is stated that, the details of the marriage had not been disclosed by him in his face book though he was very active on the internet. As per the report of the Investigating Officer dated 4.1.2017, Sri Shafin Jahan was active in the SDPI even from his college days Bar & Bench (www.barandbench.com) W.P.(Crl.)297/2016. 85 where he was active in the Campus Front. ‘SDPI Keralam’ the watsup group of the party has a core committee which is called ‘Thanal’. Mansy Buraqui who was arrested by the National Investigating Agency at Kanakamala on 2.10.2016 on the allegation that he had connection with the extremist organization, Islamic State (IS), was also a member of the SDPI Keralam and Thanal. Though it is stated that he had later been removed, the fact remains that Sri Shafin Jahan has association with him. He is also accused in a criminal case. 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. It is clear that Sri Shafin Jahan is only a stooge who has been assigned to play the role of going through a marriage ceremony. The alleged marriage is only a sham and is of no consequence. The same was intended only to force the hands of this court and to scuttle the proceedings in this case that were progressing. The same was intended only to take Ms Akhila out of reach of this court and her parents. We further take note of the fact that, Sri. Shafin Jahan’s mother is already in the Gulf.

He was working in the Gulf and is desirous of going back. Therefore, left to him, he would have transported Akhila out of the country. In the present confusion regarding her name, it would have become impossible to even trace her out had she been taken out of India. There are reports of girls taken out of the country after such conversions, having become untraceable. The Kerala High Court consequently annulled the marriage of Akhila in the light of these glaring facts which essentially made a distinctive one from the umpteen cases which involve revengeful initiation of proceedings of various sorts by the disgruntled parents who lost their children who were guided by their hearts. But, the Kerala High Court made a distinction before annulling the marriage and cautiously weighed all the factors which surfaced before it in stranger than fiction mode. The Supreme Court verdict and the permission accorded to the NIA to continue the investigation would give anxious moments to the students of law as this is a case which will remain alive as the Supreme Court verdict has not put a close to the issues raised by the Kerala High Court but on the other hand has opened up a new path for investigating the criminality involved in the whole discourse. The detailed order of the Supreme Court is yet to come.

 

About the author

KV SREEMITHUN

Leave a Comment