INTERNSHIP WORK

HADIYA’S CASE
Full case name: Shafin Jahan v. Ashokan K.M.

How did it reach the Supreme Court?

Operative Part
Is it a case of habeas corpus?
Why did it move into court?
The rationale of the other judgement
Answer:
The judgement of the High Court was to annul the marriage following the writ of habeas corpus under
Art. 226 filed by Hadiya’s father in the Division Bench of the High Court of Kerala.
The father the writ of habeas corpus twice, first when Hadiya was missing, however after her
appearance in court, the court dismissed the petition. The father filed the same writ petition a second
time for fear that his daughter would be transported outside the country. The HC allowed the petition
the second time.
The husband appealed to the Supreme Court which reversed the judgement in favour of the couple.
The operative part of the SC judgement written by CJI Dipak Misra for himself and J. A.M.
Khanwilkar:

 The HC should not have annulled the marriage.

 The HC had exercised its right of “Parens Patriea” in light of the respondent Hadiya’s
marriage to Shafin Jahan.
 They raised the question “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.” This
happened because Shafin Jahan stated that he was a graduate and employed in the Gulf.
Keeping in mind the fact that she does not possess a passport so it is unlikely that she will be
able to leave.
 HC expressed its dissatisfaction with the marriage and deemed it suspicious. They deemed
Hadiya, a major, to be vulnerable at her age. Further instructions were given to have her put
up in a hostel without access to a mobile phone, only her parents could meet her, and the
petitioner (her father) had to conduct a background check on the bridegroom and their
marriage.
 They stated that the Hadiya should be in the custody of her parents and her marriage is a sham
and declared it null and void since they didn’t think the couple was of competent age to
decide.
 Shafin Jahan filed a special leave petition in the SC and the court granted it.
 Hadiya was allowed to pursue her internship and complete her course in the university. The
NIA investigation would be continued with accordance to the law.
 The SC called the HC conduct in the case fallacious guided by a social phenomenon,
especially with regards to the writ of habeas corpus.
  It then criticised the HC’s use of parens patriea in the context of her being a vulnerable adult
with capacity: marriage. It deemed this as another ground to invalidate the judgement.
 The SC stated that It is obligatory to state here that expression of choice in
accord with law is acceptance of individual identity.
 The father’s point of view cannot curtail the daughter’s freedom and fundamental right.
 The NIA probe would go on as per law.

D.Y. Chandrachud’s judgement:

 The Kerala HC transgressed the limits of its jurisdiction in issuing a declaration annulling the
marriage of Shafin Jahan and Hadiya in the course of the hearing of a habeas corpus petition.
 The court also transgressed the constitutional rights of Hadiya.
 While the NIA continues its investigation in accordance with the law, the marriage of Shafin
Jahan and Hadiya shall not form the subject matter of the investigation.

List the number of years where the state governments started official enquiries? Any official
sources for it? What was the finding of these enquiries?
1. Karnataka

No evidence was found by the CID even in late 2009.

They found that many Hindu girls had converted to Islam, but it was off their own
will.
Then in early 2010, the state government reported to the Karnataka High Court that
although many young women had converted, there was no organized attempt to do so.
The high court then stayed further police investigation.

Sources:
https://www.thehindu.com/news/Karnataka-CID-finds-no-evidence-of-Love-Jihad/
article16891851.ece

the deccan herald article is no longer available.

2. Kerala

Poster campaign launched in Thiruvananthapuram by an organisation called Shri Ram

Sena and state police began investigation.
In October 2009, the police reported that they had not found any organisation called
‘love jihad’ but they had reasons to suspect that there were concentrated attempts to
persuade girls to convert after falling in love.
 Some unconfirmed reports of foreign funded networks were documented encouraging
conversion through subterfuge, however there was no evidence of such foreign
financial aid or organisations was found.
In December 2009, the Kerala HC stayed the investigations in the case, granting relief
to two people accused of love jihad despite criticising the police investigation.

The investigation was closed by Justice M. Sasidharan Nambiar following Punnoose's

statements that no conclusive evidence could be found for existence of "love jihad".
KT Sankaran however suspected that there was forceful conversion while listening to
a bail plea of a muslim youth.

In 2012, after two years of investigation, Kerala police declared that love jihad was a
campaign without substance, and they bought legal proceedings against the
website hindujagruti.org for spreading religious hatred and false propaganda.

Following the proceedings of Hadiya’s case in 2017, the supreme court directed the
NIA to produce evidence and after a probe into similar such cases and 11 interfaith
marriages, no evidence of coercion was found.

Sources:
https://www.newindianexpress.com/cities/thiruvananthapuram/2009/sep/26/poster-
campaign-against-love-jihad-89673.html
https://timesofindia.indiatimes.com/city/bangalore/Rama-Sene-to-launch-Save-our-
daughters-Save-India/articleshow/5181924.cms?referral=PM
http://archive.indianexpress.com/news/kerala-hc-wants-probe-into-love-jihad/
523630/2
http://www.mathrubhumi.org/news.php?id=25130
http://articles.economictimes.indiatimes.com/2009-12-10/news/28410696_1_love-
jihad-religious-conversions-religions
http://www.dnaindia.com/india/report-love-jihad-kerala-high-court-stays-police-
investigation-1324828
https://www.thequint.com/voices/opinion/hadiya-like-case-in-kerala-again-love-jihad-
ghar-wapsi
https://web.archive.org/web/20131211064437/http://gulftoday.ae/portal/9af0ebf3-
d10f-4592-bd7e-9a0dc0d37bc6.aspx
https://www.ndtv.com/india-news/supreme-court-asks-nia-to-examine-kerala-love-
jihad-cites-blue-whale-1738417
https://timesofindia.indiatimes.com/india/supreme-court-hears-its-1st-love-jihad-case-
demands-proof-from-nia/articleshow/59923249.cms
https://www.thehindu.com/news/national/kerala/supreme-court-orders-nia-probe-into-
kerala-womans-conversion-and-marriage/article19501689.ece
https://www.hindustantimes.com/india-news/nia-ends-kerala-probe-says-there-s-love-
but-no-jihad/story-wlpWR7BMNcdJHkb1MUso4J.html

3. Uttar Pradesh
In 2014, the police in Uttar Pradesh did not find any evidence in the 5-6 cases of love
jihad brought before them. (reported by reuters but the page is no longer available)
In the same month, the Allahabad High Court gave the state government and UP EC
10 days to respond to a petition to restrain the use of ‘love jihad’ and take action
against Yogi Adityanath.

Sources:
https://www.indiatoday.in/india/south/story/love-jihad-oommen-chandy-islam-
kerala-muslim-marriage-115150-2012-09-04
https://www.indiatvnews.com/news/india/love-jihad-high-court-up-govt-ec-pil-
yogi-adityanath-41383.html?ref=veng
https://foreignpolicy.com/2014/09/04/indias-fake-love-jihad/
http://www.dnaindia.com/india/report-love-jihad-row-allahabad-high-court-
issues-notice-to-centre-uttar-pradesh-government-2016143