In a series of observations, a bench led by chief justice Dipak Mishra said that while the court believes that Hadiya, a 25-year-old woman cannot be deprived of her rights by her father, the court would consider placing her with a guardian or in a hostel.
Question: Can a mentally, physically fit 25-year-old woman be put in legal custodianship by a court?
Law permits inter-faith marriages—courts cannot pronounce on the validity of marriage
Vice-Chancellor of NALSAR University of Law, Hyderabad
Individualism is the central theme of civil liberties under our constitution. Individual autonomy in terms of choices of food, dress, religion etc. has now been upheld by the apex court in the nine-judge bench privacy judgment.
Conversion to another religion as well as choice of marrying a person of one’s own choice are an integral part of individualism upon which state and others should have no concern.
Indian law, in fact, promotes love and marriages between persons belonging to different faiths. The Special Marriage Act governs the inter-religious marriages. It is strange that at first Kerala High Court was convinced with the woman’s and the man’s testimony that it was not a case of undue influence on her, and then suddenly made a U-turn as soon as it was informed of their marriage.
Here marriage took place after a matrimonial notice was given by the woman and therefore it is not a case of love jihad. In a similar matter another bench of same High Court recently took a different approach and refused to intervene.
The parental custody ends on the child attaining maturity. In this case, the woman is 25 years old yet her custody has been given to her father. Her individual autonomy to take her own decisions has been seriously undermined. No father can impose his decisions on his adult children.
The Kerala High Court judgment reflects patriarchy because it considers women vulnerable. Moreover, a court cannot decide on the validity of a marriage if the parties are adult. Such a power can never be exercised in writ jurisdiction. No right of the father has been violated just because his adult daughter married a man of different religion.
The Kerala HC has had a spate of rulings in the last year that grossly violate women’s fundamental rights
Special Correspondent, ThePrint
There should be no question of restricting decisional autonomy of any person who has attained the age of majority and is of sound mind.
The Kerala High Court has had a spate of rulings in the last year that grossly violate fundamental rights of women taking patriarchal positions that you would expect from kangaroo courts.
A division bench of the high court validated parental rights “exercised for the ultimate benefit of the ward.” The “ward” happens to be a practicing doctor kept in house arrest by her parents when she wanted to marry a man of her choice. The man had filed a habeas corpus writ when she disappeared days after they decided to marry.
Athira, another woman who converted to Islam was put through court mandated psychiatric tests to ascertain if she was sane enough to make such decisions.
In another case, the court said no to psychiatric tests but put the woman in a hostel till she decides to marry adding that only her parents can visit her.
Even Hadiya was kept in a hostel with no cell phone or visitors before she was packed off to her parent’s house.
These cases are usually brushed aside as aberrations but become dangerous precedents when a judge wishes to quote them. For example, in the Hadiya case, the judges extensively refer to the Athira case for establishing a pattern.
The dangerous effect compounds when the apex court does not act on these cases and directly fillips these perverse orders.
Even if women are to make bad choices in marrying criminals and rouges, the courts cannot use their jurisdiction to restrict them.
Jarring to see the top court assume the role of the anxious, unnerved patriarch
The one thing about patriarchy that makes it one of the most resilient forms of discrimination is that it does not always have to rely on brute force, violence or abuse.
Its resilience comes from convincing the society that the big, bad world is out to get women, who ought to be saved. It plays out in the battles between the bad patriarchs – the villains, the other, and the good patriarchs – the saviours and the custodians of women’s honour. The battles necessarily hinge on the invisibilisation of women, on silencing their voices, on rendering their agencies inconsequential.
The Hadiya case is the most recent example of this battle between the good patriarch and the bad patriarch. The woman’s father, her religious community at birth, the state are the custodians of her honour, well-being, and security. And the man she chose to marry, and the religion she chose to adopt are the evils she ought to be protected from. In annulling a marriage Hadiya chose to enter into or in seeking to appoint a custodian for the 25 year old woman, the court is only doing what the family and the society have always done.
Should young girls be allowed to own mobile phones? Should they be allowed to have sex before marriage? Should they be allowed the right to say no to sex in marriage? Should a Hindu girl be allowed to have a cup of tea with a Muslim man? Should a Hindu girl be allowed to marry a Muslim man?
Distinct as they may seem, these anxieties are all part of the same continuum. It’s just more jarring to see the country’s top court assume the role of the anxious, unnerved patriarch.
Akhila is not an isolated case, but part of a growing pattern of converting women from Hinduism to Islam
RSS Kollam Vibhag Karyakari Sadasyan, Kerala
In January 2016, Akhila converted from Hinduism to Islam by marrying Shafin Jahan and changed her name as Hadiya.
In January 2016 itself Akhila’s father Ashokan filed the first habeas corpus petition before Kerala High Court about his missing daughter. Ashokan filed the second habeas corpus petition alleging that Akhila had been converted to Islam forcefully.
As per Indian tradition, the custody of an unmarried daughter should be with the parents, until she is properly married. Akhila was under the custody of some Islamic organisation in Kerala. They took 11 months (Jan to Dec 2016) for the marriage.
Everybody thinks it was a normal love marriage. But in this case forceful conversion from Hinduism to Islam occurred. In Kerala, “Love Jihad” is like a cancer and the ‘Popular Front of India’ is involved in this activity.
An institution in the name of ‘Sathyasarani’ more than 6000 similar cases have been reported, and the court has instructed the NIA to investigate this. Akhila’s is not an isolated one but part of a growing pattern of converting women from Hinduism to Islam.
If the Supreme Court directs Akhila to go with Shafin Jahan, it will help jihadis and other Islamic fundamentalists will use the situation for forceful conversions affecting the social harmony of our state.
This judgment serves as a dangerous precedent
Advocate-on-Record, Supreme Court of India
The curious case of Hadiya, which is now (in)famously referred to as the ‘love jihad’ case serves as a classic example as to why there ought to be judicial circumspection while deciding issues/questions that have the potential to impact a citizen’s freedom of choice, especially in matters concerning a person’s private life.
The entire approach of the Kerala High Court in the case is very disturbing for the simple reason that the jurisdiction under the writ of habeus corpus ought not to have been applied for deciding a custody dispute.
‘Parens patriae’ i.e. the rationale for the jurisdiction exercised by the high court is a doctrine applied in cases involving the rights of minors and those persons who have been deduced as mentally incapable to make informed and appropriate decisions for themselves.
Employing her age as factor while deciding the case, the court has held that the girl, who is a graduate in homeopathic medicine and surgery, is weak, vulnerable, and capable of being exploited in many ways.
While on one hand the court acknowledges her age and strong educational background, the same factors do not prohibit the conclusion arrived at by the court in granting the custody of the girl to her father. The girl has made her intentions clear through affidavits and statements in the present as well as previous habeas corpus pleas, that she has reservations about returning to her parents.
This judgment serves as a dangerous precedent and can spark a trend of judicial decisions which deem fit to decide issues of custodianship pertaining 25 year-old adults. A girl attains majority and is legally eligible to be married at the age of 18 in India, her freedom of making her life decisions at the age of 25 remains under threat and has now become subject to inexplicable judicial intervention and scrutiny.
It may not be possible for Hadiya’s father to seek custodianship rights
J. Sai Deepak
Advocate, Supreme Court and Delhi High Court
On 3 October, 2017, the Supreme Court expressed reservations with respect to the Kerala High Court’s order nullifying the marriage of Shafin Jahan with a Hindu girl Hadiya alias Akhila, who converted to Islam.
The said direction of nullification was passed in exercise of the High Court’s writ jurisdiction under Article 226 of the Constitution. One of the issues before the apex court is whether the father of Hadiya alias Akhila could seek custody of his 25 year old daughter.
This may require the court to look into the matter and apply the provisions of statutes which govern custodianship of minors in India, namely the Hindu Minority and Guardianship Act, 1956 (“HMGA”), and the Guardians and Wards Act, 1890 (“GWA”). The GWA is the general legislation and the HMGA is the specific legislation which applies to Hindus.
The HMGA is meant to act in addition to, and not in derogation of the GWA. While the HMGA defines “minor” as a person who has not completed the age of eighteen years, the GWA defines “Minor” to mean a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is to be deemed not to have attained the age of majority.
In any event, the subject-matter of both these statutes are minors and incapacitated adults, but not adults in possession of their faculties. Viewed in this light, it may not be possible for the father of Hadiya alias Akhila or anyone else to seek custodianship rights over her given her adulthood and given the fact that she has not been declared an incapacitated adult.
The doctrine of parens patriae is wholly inappropriate in the Indian context
Aman M. Hingorani
Advocate on Record & Mediator, Supreme Court of India
The sovereign people of India have given to themselves the Constitution which differentiates the powers and functions of the organs of the Indian State— executive, legislature, and judiciary. The Indian State, as representative of sovereign people, may be sovereign in relation to other countries. But it is not sovereign qua its own people from whom it derives its sovereignty.
While the political sovereignty lies with the people of the country, the legal sovereignty is vested in the Constitution. The judiciary, a creation of the Constitution, must necessarily possess only those powers which fall within its sphere as demarcated by the Constitution.
To my mind, there is no provision in the Constitution, or in any statute, by which a court can arrogate to itself the power to decide the issue of legal custodianship of a person who has attained majority and is of sound mind.
Moreover, the doctrine of parens patriae is wholly inappropriate in the Indian context. This doctrine has its roots in the common law concept of the ‘royal prerogative’ of the British Crown, and includes the right of the British Crown to take care of its subjects under disability.
Apart from the question of applicability of such doctrine where the person is a major and is mentally and physically fit, surely the court in India cannot claim equivalence with the British Crown nor view the people as its subjects. If it were to do so, this would be a clear case of the court failing to appreciate the scope and limit of judicial power.
Compiled by Divya Narayanan