Can a 24-year-old woman live and marry according to her wishes, even if that means defying her family and community? The Constitution of India’s answer is an unambiguous yes — an individual’s freedom is among the first principles and guarantees of democracy.
The Supreme Court of India on Thursday upheld this right by striking down a Kerala High Court order of May 2017 that had annulled the marriage of Hadiya, formerly Akhila Asokan, to Shafin Jehan. A much welcome decision, indeed, but the question remains: Did it have to come to this? Did it have to take 10 months of being shuttled from court to court, of being incarcerated in her parental home against her wishes, of being separated from her husband, for Hadiya’s inalienable right to personal freedom to be affirmed?
For Indian women, especially, this has been a disquieting spectacle. They have watched the judiciary endorse a poisonous and patriarchal understanding of the rights of the family over a woman’s freedom. The Kerala High Court, while annulling Hadiya’s marriage, had observed that “a girl aged 24 years is weak and vulnerable, capable of being exploited in many ways” and that “marriage being the most important decision in her life, [it] can also be taken only with the active involvement of her parents”.
One of the ways in which democratic institutions empower a citizen is by listening to her, and recognising the validity of her voice. Through the case’s progress, Hadiya had repeatedly and consistently maintained that she had converted to Islam of her own volition, and later married a Muslim man of her choice. Why did the courts then appear to struggle to listen to Hadiya, infantilised as a girl vulnerable to shadowy forces of “love jihad”, to acknowledge her rights to live the life she had chosen?
When in November last year, Hadiya was finally heard in the SC, she was released from her parental custody and allowed to carry on her studies. This order now sets her free to be reunited with her husband, even if an NIA investigation into alleged forced conversions will continue.
This newspaper had argued that by putting Hadiya on trial — a woman who has broken no law, nor committed any crime — the courts had allowed a challenge to the fundamental rights guaranteed to India’s citizens. That challenge has been staved off and the SC has steered towards safer ground. Hadiya’s freedom is to be celebrated, but her tribulations should be a reminder to the judiciary of the dangerous course that it nearly embarked on.
Courtsey – The Indian Express