Hadiya broke no law
When is an adult an adult in India? In a culture that believes in pitru devo bhava (the father is like God) and where gods can do no wrong, not, it would seem, as long as the patriarch is around and eager, insistent, and willing to control the life of his child, regardless of her age. The bizarre case of Hadiya, who was born as Akhila to Hindu parents but at some point, after she became an adult, decided to follow Islam, is instructive of the callous disregard for individual freedom in India.
When she chose Islam, she broke no law. She then decided to marry a man of her choice, who was Muslim. Again, she broke no law.
And yet, her father, and now successive courts, want to second-guess her, as they attempt to figure out whether she was fit to make those decisions and whether her decisions were her own.
At 18, a woman in India can vote, marry, have a child, take up a job, drive, and do many other things like most adults. But she remains a girl. In an astounding overreach that disregards fundamental rights, the Indian state wants to prevent her from living the life she wants, and the Supreme Court—for now—seems to agree with the intrusive state. Earlier this year, the Kerala high court unusually decided to annul Hadiya’s marriage with Shefin Jahan, entertaining a habeas corpus case filed by Hadiya’s father.
News reports have given various accounts of her age, but none says she is a minor. She is in her early 20s and has been forcefully saying she has decided and is happy with her decision to live with her husband. But her father, a court in Kerala, and now the Supreme Court, aren’t sure if that’s right.
All kinds of hypotheses are presented as facts: that she has been brainwashed and that she and her husband are potential terrorists. National investigators are brought in, as if to provide evidence for the despicable myth, the “love jihad” campaign, that Hindu fundamentalists have unleashed through pamphlets and WhatsApp forwards across India, which makes it everyone else’s business to interfere in the personal affairs of couples.
The court decision is intriguing and baffling. On Monday, Hadiya secured a partial victory at the Supreme Court, which ruled that she be freed from virtual house arrest. For months she has lived at her parental home as a prisoner, denied the freedom to join the man she says she loves. But the court did not grant her full freedom; it said she must return to her course in homoeopathy in Salem, where the college dean would be her local guardian. The patriarchy returns; a young woman—a girl to many—simply can’t be trusted to make her own decisions. At the hearing, when Hadiya told the court that her husband could be her guardian, Justice D.Y. Chandrachud said a wife is not chattel, and that as an individual she has her own status in society, and that her husband could not be her guardian—and then the court proceeded to make the college dean her guardian.
This drama could have been averted much earlier. When the Kerala court ruled, the Supreme Court could have stayed the judgement, made its own inquiry to find out if Hadiya was truly acting out of her free will by asking her what she wanted, wished her well and let her be, preventing her father and the state from interfering with her life.
Instead, the Supreme Court ordered the National Investigation Agency to inquire into her alleged forced conversion—for which it could not get a retired judge to supervise the investigation—because of allegations that her husband was a recruiter for the Islamic State and extremist groups used hypnotic techniques to influence vulnerable people. But it took months to ask her what her choice was. And when she did, she was removed from one cage and transferred to another, with the glimmer of hope that the court would return to the matter in January.
Seeing a hostel as a cage may sound harsh, but women students in India have described them as such—as places with strict rules that deny them their autonomy, where they must live by obeying rules. Recall the archaic rules at the Banaras Hindu University, the pinjra tod (break-the-cage) movement which aims to make hostel and paying guest accommodation rules in India less regressive, and the disregard with which the legitimate demands of women students are met.
Denying Hadiya her right mocks the notion of adulthood and agency. That it is being denied to a woman who has chosen to embrace a minority faith only makes it a more telling and dismaying story. The more sobering reality is that the state, the courts, and India’s elders appear to have an understanding of “personal freedom” that is contrary to the idea of freedom and undervalues what “personal” means.
Whether Hadiya’s choice is wise, or if it is in her best interest, is something for Hadiya to ponder over. Her family and well-wishers can advise, offer guidance, even warn. But as an adult she has the right to make her decision, even if it seems wrong to her family.
The framers of the Constitution gave meaning to the rights of individuals, not the collective. Parents have a duty to protect their children, and children must wait till they are adults to enjoy many of the freedoms the Constitution grants. But once they are adults, they are adults. It is only in a culture where elders, usually men, dole out justice sitting in the shade of a banyan tree, that their notion of order is placed before law, and their idea of stability supersedes an individual’s rights.
Salil Tripathi is a writer based in London.
Comments are welcome at firstname.lastname@example.org. Read Salil’s previous Mint columns at www.livemint.com/saliltripathi