Reflecting a societal attitude that infantalises women, Indian courts historically fail to see them as full citizens with free choice, lawyers note
By Shoaib Daniyal
Few cases have roiled the Indian judiciary like that of the conversion and subsequent marriage of 25-year-old Hadiya. Born Akhila Ashokan to Hindu parents in Kerala, Hadiya converted to Islam in 2015. In December 2016, she married a Muslim man, Shafin Jahan. Acting on a petition filed by her father, the Kerala High Court took a dim view of Hadiya’s actions, saying, “As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married.” It went on to confine her for more than a year, first in a women’s hostel and then in her parents’ home. In May this year, the court dissolved her marriage, citing the undue influence of Muslim organisations.
Last Monday, the case was heard in the Supreme Court. Like the Kerala High Court, the Supreme Court was in no mood to allow Hadiya to do what she wanted. Even though she said she wished to be with her husband, the court ordered her back to her college in Tamil Nadu to finish her studies. “I asked for freedom from [the] court,” Hadiya said on Wednesday. “I wanted to meet my husband, but the fact is that I am not free till now and that is the truth.”
Given that Hadiya is an adult, there is little legal authority for the judiciary’s actions — a fact that prompted senior lawyer Indira Jaising, who is representing Shafin Jahan, to question if the Supreme Court’s decision was driven by gender. Jaising asked the court if it would have acted in this manner had Hadiya been a man. This angered the judges hearing the case, who denied that gender was an issue here.
But is that true?
THE Indian Constitution is, for the most part, a gender-neutral document. The right to equality, across religion, race, caste, sex or place of birth, is a key fundamental right decided upon by the country’s founding fathers. On this bedrock, the judiciary has to its credit a string of judgements that mitigate the misogyny of Indian society and specifically hold up the right of women to make their own choices.
In the 2006 Lata Singh judgement, for instance, the Supreme Court held that “this is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes”. In the Shaheen Parveen judgement in 2010, the Allahabad High Court was emphatic that “the petitioners who are major to live freely with any one and they can marry any one” in the face of opposition from the woman’s parents.
WHEN SOCIETY SEEPS IN
YET, the judiciary seems to have ignored this history in Hadiya’s case. Karuna Nundy, a lawyer who has practised in the Supreme Court, traces the fault to India’s overall make-up as a society. “Even when politicians speak of women rights, they speak in term of women’s protection — about daughters, sisters and mothers,” she noted. “Infantilising women is a trope across Indian society.”
She added, “That the idea of custody even existed in the Hadiya case is in part a result of not seeing women as full citizens, with the same right to human agency others have.”
Nandita Saikia, a media and technology lawyer, believes that gender has played a role in the Hadiya case. “In Hadiya’s case, I find it difficult to imagine any of these questions being raised by anyone, in public discourse or elsewhere, if it was not for her gender,” she said. “The law itself is arguably embedded in patriarchal structures. Which makes it difficult to ignore the gender implications of even seemingly gender-neutral laws. It isn’t entirely clear what the statutory or constitutional basis of the order in Hadiya’s case is.”
According to Saikia, this is not the first case in which the higher judiciary has ignored the law and been driven by gender. “In the  Farooqui [rape] judgement, for example, the Delhi High Court suggested that a woman’s feeble no may mean a yes,” she said. “There was no explicit statutory basis supporting that interpretation of the law. As in Hadiya’s case, the rape judgement seemed to be influenced by patriarchy and culture in addition to the law.”
RIGHT TO CHOOSE
SAUMYA Uma, assistant professor at the School of Law, Governance and Citizenship at Delhi’s Ambedkar University, was critical of the patriarchal values embedded in the Hadiya case. “This has to do with infantilising women,” she said. “Women have to be under [the] control of their fathers or husbands. They have no mind of their own. They cannot take decisions on their own. If they do, [they] must be brainwashed. They have no agency.”
She added, “This trend is not unprecedented in the judiciary. Courts have frequently raised enticement as a reason for girls eloping. Recently, the Rajasthan High Court even passed an order restricting Arya Samaj marriages.”
In 2011, the Rajasthan High Court placed restrictions on Arya Samaj marriages that are often used by eloping couples to get married in a hurry. The court ruled that Arya Samaj unions would henceforth need the approval of the couple’s families.
“Judges are supposed to be upholding conditional rights and values,” Uma said. “Why is it when it comes to judgements like this, they forget constitutional values?”
Renu Mishra, executive director of the Association For Advocacy and Legal Initiatives in Lucknow, an organisation that works for the rights of women and children, including the right to choice in relationships, also expressed disappointment in the Supreme Court’s ruling in the Hadiya case. “I have seen such attitudes in lower courts but never in the Supreme Court,” she said. “The Supreme Court is known to have upheld the agency of women in multiple judgements.”
She went on to say, “I have experienced how lower courts turn a blind eye to women’s agency in the past. Kidnapping charges are often used to break up couples and the courts often ignore this abuse of law. But never in the Supreme Court.”
Mishra added, “If we are all tutored and brainwashed, then how can we be allowed to vote? Today, as a woman and a lawyer, I feel a sense of suffocation since our liberty has been curtailed.”