There are frequent accusations of forced marriages in India and Pakistan which are regularly reported in the mass media. These reports elicit a strong emotional response from the society at large. Many such cases end up in violence with families taking the law in their own hands. A few of these cases end up in courts with the judges deciding the fate of such marriages. Let's examine the reality of "forced marriages" in South Asia.
Interfaith Marriages:
Charges of forced marriages are usually leveled mostly against interfaith or inter-caste marriages, particularly when such unions occur without the agreement of the parents on one or both sides.
Accusations of forced marriages are rare for same-faith and same-caste marriages arranged by the parents on both sides, even when these marriages take place without the consent of the bride and the groom.
Kerala Couple Hadiya and Shafin Separated by Indian Supreme Court
Court Case in India:
A recent Kerala case involved a Muslim man Shafin Jahan and a Hindu woman Akhila Ashokan. The two met as fellow students studying medicine in Coimbatore, Tamil Nadu, and fell in love, according to a report in The Guardian newspaper.
Akhila Ashokan, who prefers to be known as Hadiya, converted to Islam from Hinduism after meeting Shafin, and they married in December 2016. Upon hearing of the union, her "livid father went to the Kerala high court demanding that Hadiya be returned to his custody", according to The Guardian. Contrary to Hadiya's express wish to stay in her marriage to Shafin, the court nullified the wedding and forcibly sent her back to her parents' home in Kottayam. When Shafin challenged it in the Indian Supreme Court, the nation's top court upheld the lower court's decision.
Court Case in Pakistan:
An interfaith marriage between Pakistani Hindu woman Anoshi married a Muslim man Bilawal Ali Bhutto was challenged in Islamabad High Court by the bride's father Anand Lal. Lal's lawyer contended that Anoshi had been kidnapped by Bilawal who forcibly converted her to Islam and married her, according to the Daily Times newspaper.
Anoshi told the court that she converted to Islam by choice. She took the Muslim name Maria and insisted that no one forced her to change her religion. The court directed 40-minute meeting of Anoshi with her parents and her family took place in the office of the Justice Shaukat Siddiqui where he maintained that her decisions to convert to Islam and marry Bilawal was done of her own free will. The court then allowed Anoshi to go with Bilawal and ordered police protection for the couple.
Earlier in 2012, similar charges of forced marriages were dismissed when Faryal (Rinkle Kumari), Hafsa Bibi (Dr Lata) and Haleema Bibi (Asha Kumari) told Pakistan Supreme Court that they wanted to live with their husbands who they said they chose to marry of their free will.
Summary:
Young men and women in India and Pakistan who dare to defy traditions and go against the wishes of their parents to marry outside their faith, tribe or caste face the ire of their near and dear ones. The most common accusations leveled in such cases are those of "kidnapping" and "forced marriage". Such accusations then become fodder of the mainstream media where they are repeated ad infinitum without verification. Some of these cases end up in courts where the outcome depends on the judges own prejudices without regard to the right to freely choose marriage partners. The Indian Supreme Court's recent judgement forcing the separation of Hadiya and Shafin amply illustrates the injustice in such cases.
The forced marriages are now reducing in Pakistan because now people are well aware of this social problem. There are so many NGOs in Pakistan providing awareness about this social problem and also provide protection to the victims of forced marriages.
The judiciary’s increasing incline towards Hindu right-wing populism has worrying consequences for feminist judicial activism. A reminder of this is the Supreme Court ruling in the case of a young adult woman, Hadiya from Kerala, who was illegally confined in her natal home after her consensual marriage to an adult male, Shafin Jahan, was declared invalid by the Kerala High Court. The Supreme Court has most unexpectedly involved the National Investigation Agency to investigate whether Hadiya’s marriage of choice may actually be a symptom of a larger conspiracy by the terror outfit Islamic State to recruit youth into its ranks through the intimate weapon of mass conversion, better known as Love Jihad. This has disappointed activists who considered the judiciary as the last standing pillar upholding constitutional values and protecting women’s freedoms.
Hadiya was born a Hindu with the name Akhila Ashokan. She got attracted to Islam in the course of her interactions with Muslim peers when studying for a degree in physiotherapy. She decided to convert to Islam against the will of her parents and lived independently under her new identity as Hadiya. The courts rejected two habeas corpus petitions by her father and endorsed her right to take life-altering decisions. However, this changed when Hadiya got married to Jahan. The Kerala High Court annulled her marriage and granted custody to her parents.
By whipping up conspiratorial fervour, the courts, Hadiya’s parents and right-wing sociopolitical organisations have visibly nullified her fundamental right to life and freedom of association. Repeated statements made by the courts and her parents have infantilised her and rejected her ability to take her own decisions, especially those which violate the writ of her parents over her. Meant to protect women’s freedoms, the courts have not just failed to do so but unwittingly conferred a punishment on Hadiya through confinement under parental custody. She has been barred from contacting her husband and has had to give up her professional practice.
Previous cases of so-called Love Jihad were premised on familiar notions of love being a state of ecstasy, naiveté and audacity. However, Hadiya’s case is not. She was not in love, she had registered herself on a Muslim matrimonial website post conversion, where she met Jahan, a young professional working in Saudi Arabia, and decided to marry him. This is what baffles many. Why would a woman in her right mind go against the grain of societal norms and take such risks? The answer may be a damning one; that women seeking mobility are increasingly realising the lovelessness of Indian families/society, rejecting these and making life choices starkly different and radical from that approved by the latter. While such transgressions have been around for as long as society has existed, globalisation is providing accelerated opportunities for the same. Thus, it may be seen that the new sites for these contestations are small towns and cities in Kerala, West Bengal, Karnataka and Uttar Pradesh where the anti-Love Jihad armies and anti-Romeo squads thrive.
Naysayers would suggest that the Supreme Court has only asked for an investigative report and not upheld the annulment. However, the investigation is in no way contingent on Hadiya’s confinement and hence, the Court’s move has been widely rejected as complicit in denying her both agency and dignity. It may also be that Jahan is indeed sympathetic to or an outright supporter of the Islamic State just as he may be perfectly patriarchal in his sensibilities too. However, within the many patriarchies women are surrounded by, they are constantly choosing and negotiating power at all times. Denying her the opportunity to make those choices or diluting the power of her choices is a visibly new low that the Indian state has reached with Hadiya’s case. How did this come about?
Feminists and the legal fraternity are particularly rattled. In the past few years, the higher courts have been hailed for setting brave precedents in punishing a range of social and physical/sexual violence against women. The judiciary has been repeatedly touted as the conscience keeper of the nation, especially on the rights of the most marginalised. A whole new phenomenon of judicial acti*vism flourished, vesting faith and confidence in the independence of the judiciary. However, the Hadiya case may just be a fallout of excessive feminist dependence on the judiciary. The judiciary’s invocation of parens patriaejurisdiction (that the state is the parent of the nation) to conduct background checks on Hadiya’s partner of choice to decide the fate of her marriage is but an
extension of the good faith invested by activists and scholars in the courts to secure women’s rights and futures. Judicial activism cannot take the place of grass-roots struggles, mass mobilisation and initiating critical dialogue with communities to effect changes from within. All these efforts must go hand-in-hand to ensure greater security, not surveillance, of women.
