legal battle

Love jihad bogey: Hadiya committed no crime. Why has she been in confinement for a year now?

The Indian judiciary is supposed to protect a citizen's liberty. But here, it has arbitrarily taken it away, citing ‘Indian tradition’.

On August 22, the Supreme Court of India struck a significant blow for women’s rights. The court scrapped the practice of instant triple talaq, which gave Muslim men arbitrary powers to end a marriage. The move bought India in line with much of the rest of the world, where most Muslim legal systems have already barred the practice.

It is therefore a curious irony that the same court had also struck a blow against women’s rights just a week before the triple talaq judgement. On August 16, the Supreme Court ordered the National Investigation Agency to inquire into the religious conversion and marriage of Hadiya, a 24-year old woman from Kerala. In this, it backed an earlier judgement of the Kerala High Court. While Hadiya has converted to Islam and then married of her own choice in 2016, both courts seemed to disregard her own thoughts on the matter, preferring instead to let her father decide for her.

Some media reports have presented this as a case of “love jihad”, the conspiracy theory that Muslim men woo Hindu women with the express purpose of pressuring them to convert them to Islam. This is a misrepresentation. Hadiya had converted to Islam long before her marriage. The main issue here is: does India believe an adult woman has a mind of her own?

From Akhila to Hadiya

Hadiya – Akhila before her conversion – is from Kottayam in Kerala. She left home in 2011 to study for a bachelor’s degree in homeopathy in Salem, Tamil Nadu. Here she made Muslim friends and started to follow Islam.

Matters soon reached a head. Akhila complained that her family forced her to perform rituals relating to her grandfather’s death in November, 2015. In January, 2016, Hadiya left her home and moved to Satya Sarani, a Muslim educational non-governmental organisation, in the Malappuram district of Kerala.

Akhila’s father, Ashokan, filed a writ of habeas corpus with the Kerala High Court, asking it to locate his daughter. On January 19, Hadiya presented herself to the court. As a consequence, on January 25, the Kerala High Court dismissed Ashokan’s petition, noting that Hadiya was not under illegal detention and was staying in Satya Sarani of her own free will.

Forced confinement

Given that it had been established that Hadiya had converted of her own free will, the matter should have ended here. But in August, 2016, Ashokan filed another writ of habeas corpus in the Kerala High Court, alleging that Hadiya was likely to be taken to Syria to fight for the Islamic State. This allegation of a link with the Islamic State was backed up with little proof. Moreover, Hadiya argued in court that since she did not possess a passport, leaving the country was impossible. Yet, curiously, Ashokan’s writ was not dismissed.

It is here that things start to get extremely convoluted as the Kerala High Court started to restrict Hadiya’s liberty. On August 17, the court ordered the Kerala Police to put her under surveillance. On August 22, the court tried to convince the young woman to accompany her parents to their home. When she refused, the Kerala High Court did something astonishing: it ordered her to be taken out of Satya Sarani and put into a hostel for women. A month later, on September 27, Hadiya complained in writing that for no fault of hers, she was “in the custody of the court without being permitted to interact with anyone else”.

In itself, this forced confinement is the most egregious misstep in this astonishing case. Without taking recourse to law or precedent, the court had proceeded to take away the liberty of an adult citizen of India. Three months later, Hadiya complained of “living a life of isolation in the hostel where she is accommodated as per the orders of this Court”. She pleaded with the court to be “set at liberty”, a plea that the court refused since “she has proved to be unworthy of such trust by her conduct”.

Infantalisation

The court now completely took over Hadiya’s life. On December 19, 2016, it ordered her to complete a course as a house surgeon while living in a girl’s hostel in Tamil Nadu. Her own wishes were disregarded and the court says this move is in the “best interests of Akhila”.

On December 19, however, there is another twist to the case: Hadiya married Shafin Jahan, whom she met through a matrimonial website. The fact that this marriage was conducted without informing the court enraged the judges, who described this action as a “subterfuge”. Remarkably, the court decided not to ask Hadiya what she wanted. On December 21, 2016, her lawyers pleaded with the court to simply ask Hadiya about the nature of her marriage and whether she was coerced into it. The court refused, simply stating, “We shall interact with the detenue, at the appropriate time. We are not satisfied that it is necessary to interact with her at present.”

Faced with the marriage and, as the court put it, the “continued obstinance of the detenue to return to her parents”, the bench decided to take matters into its own hands. On December 21, 2016, the court ordered Hadiya to be confined to a girl’s hostel in Ernakulam, Kerala. She was barred from meeting anybody other than her mother and father and even her mobile phone was taken away from her.

Hadiya married Shafin Jahan on December 19, 2016. Photo credit: Special arrangement
Hadiya married Shafin Jahan on December 19, 2016. Photo credit: Special arrangement

Taking liberties

How did the court justify taking away the liberty of an adult woman given that no crime had been committed? “It is necessary to bear in mind the fact that the detenue who is a female in her twenties is at a vulnerable age,” argued the court. “As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married.”

The final verdict of the Kerala High Court was declared on May 25, 2017. Hadiya’s marriage to Jahan was scrapped by the court, citing undue influence of Muslim organisations. She was directed to go her parent’s home under police custody – where she is today.

In response, Jahan filed an appeal in the Supreme Court. Rather than fix the errors of the High Court, the Supreme Court also continued to treat Hadiya as a non-entity. Drawing an analogy with the Blue Whale Challenge – a game rumoured to push depressed children to suicide – the court argued, “Nowadays you can persuade people to do anything.” Like the High Court, the Supreme Court simply refused to ask the individual in question, Hadiya, for what she wanted, but instead ordered a National Investigation Agency – an organisation formed to combat terror – to inquire into the matter.

On August 17, an activist named Rahul Eswar interviewed Haidya in Ashokan’s house. A video of the conversation showed Hadiya being shadowed by a policewoman, complaining that her mother stops her if she reads the namaaz. “Is this how I should live, is this my life,” Hadiya asks her mother resentfully. Hadiya’s house is guarded by the Kerala police and Ashokan controls entry and exit from the premises.

Hadiya continues to cover her head. Here, seen with her father, Ashokan Mani (right), and activist Rahul Easwar (left). Photo: Special arrangement.
Hadiya continues to cover her head. Here, seen with her father, Ashokan Mani (right), and activist Rahul Easwar (left). Photo: Special arrangement.

In the name of tradition

The ability of women to do what they want in India is severely curtailed. Nowhere is this more apparent than in the matter of love and marriage. In many parts of India, so-called honour killings often have parents murder their own daughters for marrying against caste norms. The bogey of love jihad is based on the premise that women are unable to actually make informed decisions about whom to love – a decision that the men in the family need make for them to protect their chastity and preserve the community’s honour.

What is astonishing is that the Kerala High Court supported this view. The court order calls Hadiya a “gullible person” and explicitly argues that that it was not safe to “let Ms Akhila free to decide what she wants in her life”. The court reached to “Indian tradition” to back it up, according to which, the court argued that the custody of an unmarried daughter lies with her parents, even after she had attained majority. “A girl aged 24,” argued the court – desisting from even using the word “woman” – “is weak and vulnerable, capable of being exploited in many ways”.

In doing so, the court invoked the colonial concept of “parens patriae” jurisdiction, under which the monarch in Britain was considered the parent and the protector of all his subjects. This concept is usually invoked when courts conclude that an individual is not in a position to defend themselves. In other words, the court assumes the role of a parent-guardian. However, Hadiya showed no manifest disability. She was not a minor. She had nearly graduated as a doctor and was represented by a lawyer. Why did the court, in the name of securing her rights, take away her freedom?

Courts in India are supposed to protect the individual liberties enshrined in the Constitution. Yet, as this case shows, there is a rather large gap between theory and practise if an adult woman can be forcefully confined against her will for a year and her marriage annulled because she violated “Indian tradition”.

Read our ground report from Kerala: How Akhila became Hadiya – and why her case has reached the Supreme Court.

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