The media reports on the Supreme Court’s Hadiya case hearing on November 27, show that even during the tense hearing, which lasted around two-and-a-half hours amid pindrop silence, there were lighter moments which sent out peals of laughter. Ironically, these revolved around the comments made by the judges about the status of a wife in society.
When Hadiya made a naïve comment that her husband Shafin Jehan should be appointed as her legal guardian (instead of her father to whose custody she had been relegated by the Kerala high court), Justice Chandrachud quipped, “No husband can be the guardian of his wife. At least, I am not.” He followed this by asking senior advocate Kapil Sibal, who was representing Shefin Jahan (who was challenging the annulment of his marriage to Hadiya by the Kerala high court), to explain to her that a wife is not a chattel and that she is an individual entitled to her own status in society.
However, what transpired in the court seems to suggest that even the highest court in the country is not fully convinced about a woman’s freedom and autonomy to contract a marriage of choice against the wishes of her parents. Even when a woman declares that her marriage was out of her own free choice and that she wants to live with her husband, the court seems to be hesitant to respond.
The lawyers defending the right of the couple claim that it was a victory of sorts since that day all they wanted was to secure Hadiya’s freedom to end her house arrest in her parental home. The simple logic that a woman is not a chattel seems to have eluded the high court then.
Though it was obvious to everyone that it was clearly a case of gender discrimination, the apex court, seeped in its own brand of patriarchy, could not clearly see its own role in undermining the right of an adult woman to autonomy and personal freedom. The SC judges kept vacillating about granting Hadiya, especially brought in from Kerala to be interviewed by the court, her right to be heard in her own case.
When senior counsel Indira Jaising, who appeared in the matter along with Mr Sibal ,commented that this sort of a treatment would not have been meted out had Hadiya been a man, Chief Justice of India Dipak Misra queried why Ms Jaising was making it a gender justice issue. When she asked the court not to trivialise what she had said, the CJI responded with a caustic comment that it was she who was trivialising the issue and it was unfair on her part to do so. It is surprising how the apex court failed to see the issue clearly as one of gender injustice and denial of women’s freedom in matters concerning marriages of choice. A few months earlier, during the triple talaq controversy, the media was lamenting over the fact that a Muslim woman is devoid of rights and lacks an agency and that she is a victim of Islamic patriarchy. In the present controversy, it appears that it is the Hindu woman who lacks agency and can easily be “brainwashed” or “indoctrinated” into changing her religion and marrying against her own better interests. What gets articulated while terming conversions and marriages by Hindu women to Muslim men as “love jihad” is that Hindu women are devoid of making intelligent choices while choosing their marriage partners and that they can easily be enticed by Muslim men and lured into marriage. Further, since women are not able to decide what is good for them, it is the father of the bride who must decide for her and without his consent the marriage is not valid.
The “love jihad” bogey has been effectively used by the RSS and other Hindu right wing groups during election campaigns in several states. But what is disturbing in the present case is that even our courts seem to be endorsing this terminology.
The “love-jihad” campaign diligently perpetuates the myth of an insatiably-lustful Muslim man. Hindu women, in contrast, are made out to be helpless and innocent, women who are unable to decipher what is best for them and are prone to seduction. This venomous propaganda has been wreaking havoc in the lives of young couples. Henceforth, all inter-community and inter-religious marriages will become suspect. The verdict of the Kerala high court, annulling the marriage of Hadiya at the instance of her father, will only serve to increase parental control over marriages of choice. What will be the impact of such a verdict in future cases of inter-religious marriages of choice is yet to be seen.?
Hindu marriages were rendered contractual more than 60 years ago and the Special Marriage Act was enacted in 1954 to provide for registration of inter-religious marriages. The consent of parents is not required for such marriages. However, today the right of young women to choose their marriage partners across the religious divide seems to be in danger of being termed as “love jihad”.
In the case of Hadiya, it is even worse. The fact that she did not convert to contract a love marriage but had converted earlier out of her own volition to Islam seems to be going against her. It is here that the bogey of “indoctrination” is brought in.
It was argued in the court that Hadiya is programmed and there is a need to “de-programme” her. By this logic, everyone is programmed since everyone has their own worldview and are socialised into certain belief systems. The BJP and the RSS have their own programmes for indoctrinating youth. Marriage alliances among cadres are generally made by leaders within many political parties.
Even assuming that Hadiya had converted because she was influenced by certain religious/ political ideology that cannot be construed as a crime. Our Constitution grants freedom to practice the religion of one’s choice even when one is not born into that religion. But the danger seems to be when that religion is Islam. When the spirit of secularism is deeply fractured and the nation is fragmented along religious and communal lines, it is convenient to label those who belong to a different faith as the “other’ and as an enemy of the community or of the nation. Unfortunately, Hadiya’s marriage seems to have been entangled within the political ideology of our times. The manner in which Hadiya has been able to withstand the pressures exerted on her from several quarters, her family and the state machinery is commendable. Even when her entire life, her life choices and her belief systems were under attack in an open courtroom, she did not buckle down but remained firm and was able to clearly articulate her demands — she wishes to complete her studies, keep her faith and rejoin with her husband. She deserves to be applauded for the courage of her convictions.