The Supreme Court on Monday directed that a Kerala woman, who had converted to Islam before marrying a Muslim man in an alleged love jihad case, be produced before it on November 27 even as it observed that the free consent of a major to marriage has to be ascertained.
The direction by the apex court for producing the woman for an interaction in an open court came amid an assertion by the National Investigation Agency that an indoctrinated person may be incapable of giving free consent to marriage.
The NIA referred to the term of "psychological kidnapping" and said that an indoctrinated person may be incapable of giving free consent and moreover, there was a well-oiled machinery working in Kerala and they are indulging in the indoctrination and radicalisation of the society where as many as 89 similar cases have been reported.
"Having heard learned counsel for the parties, we are inclined to modify the order of August 16 and accordingly direct the presence of the daughter of the first respondent at 3.00 PM on November 27. We may further add that this court shall speak to her not in camera but in open court," a bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said.
At the outset, the bench posed a pointed query to Additional Solicitor General Maninder Singh, appearing for the NIA, whether the marriage be annulled by the high court in a habeas corpus petition and can the parents be given the custody of a major woman who is 24 years of age.
"We have to find out as to where she intended to stay and as far as, marriage is concerned it is a personal thing," the bench said, adding that the free consent of a major has to be ascertained.
The additional solicitor general submitted that this was a case in which the woman has been indoctrinated and hence the court can invoke parental authority even if she was a major.
"Indoctrination is an exception to free consent. It is recognised even internationally. This girl has been indoctrinated and manipulated. In such cases the court can invoke parental authority," the law officer said.
"The free consent can be no consent if it was proved that the person in question was 'indoctrinated'", he said adding that the parental authority has been recognised by the US courts and it has been accepted by the Madras and the Kerala high courts.
Senior Advocate Shyam Divan, appearing for the father of of the woman, submitted that there was a well-oiled organisational apparatus operating for carrying out such activities.
The lawyer claimed said that Shafin Jahan, the alleged husband of the woman, was a radicalised man and he has had links with the person who used to recruit for ISIS.
"There are exchanges with that person on Facebook and Whatsapp. Kerala has a huge contingent of people who have joined ISIS. This is not a problem in Kerala but in other jurisdictions as well," he said.
"It (Kerala high court) was not merely exercising jurisdiction under Article 226 but the frame of the petition was that there is an organisational apparatus operating. It consists of PFI and such organisations. They have students, preachers, psychologists etc and they radicalise impressionable minds. The question is do courts respond to such radicalisation or do they remain silent?", Divan said.
A single case of this nature cannot "destroy the essentiality" of law, the bench observed.
Various organisations are involved in activities of radicalisation and this is not the single case as they are as many as 89 cases of similar nature have come to fore in recent times, the counsel for the NIA said.
Such cases can be also termed as "psychological kidnapping" where an indoctrinated girl was unable to give free consent, the ASG said.
Divan supported the submission of NIA saying that our's is plural society and the courts cannot allow it to be radicalised and referred to the activities of various organisations.
Senior Advocate Kapil Sibal, appearing for husband Shafin Jahan, objected to the submissions.
"He is saying that entire Kerala has gone to ISIS. And NIA investigates without authority of the court because the judge did not agree to take up the task", he said.
He also stated that the allegations with respect to the antecedents of the husband are false and the same had been investigated by the Kerala Police.
The woman, a Hindu, had converted to Islam and later married Jahan. It was alleged that the woman was recruited by Islamic State's mission in Syria and Jahan was only a stooge.
Jahan had on September 20 approached the apex court seeking recall of its August 16 order directing the NIA to investigate the controversial case of conversion and marriage of a Hindu woman with him.
Jahan had moved the apex court after the Kerala High Court annulled his marriage, saying it was an insult to the independence of women in the country.
