As the Hadiya-Shefin matter comes up for hearing today, PUDR urges the Apex court to take note of the serious violation of democratic rights of the parties involved in this so-called case of ‘Love-Jihad’. PUDR believes that the case is being used in order to provide legitimacy to the supposed presence of ‘Love-Jihad’ or ‘terror marriages following conversion to Islam’ in the country which is nothing more than a communal political agenda being pushed in the name of national security. For the past few months the courts of the country have been seized of the issue.
On October 19, 2017 a Division Bench of the Kerala High Court ruled that every case of inter-religious marriage could not be considered a case of ‘Love-Jihad,’ thereby upholding the right of Sruthi Meledath and Anees Hameed, adults who had married consensually, to stay with each other, and denying the parents of the woman their plea for her custody. This commitment of the court to the right to freedom of adult citizens, men and women, is commendable.
However it is necessary to recall a completely opposite judgment by the same court a few months earlier, on May 24, 2017, when the court had nullified the marriage of 24 year old Hadiya to Shefin Jahan, a Muslim man, and granted her father custody over her, despite her assertion in court that her marriage was entirely consensual. The court had then stated that “A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways” and added that “as per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married.”
This peculiarly contradictory response of the court cannot be explained by the subjectivity of different benches of the High Court alone but is linked to the larger paranoia over terror nurtured by the state, and its use to justify deprivation of rights. Hadiya, who had been Hindu, and called Akhila, had converted to Islam much before she married Shefin (on 19 December 2016). She had been studying and staying away from home during this period, and her father had filed two petitions in the High Court asking that she return to his house, thinking that she was being forcibly converted. The court had on both occasions accepted her statement that her actions were voluntary, and ruled in favour of her right to freedom.
The drastic about turn in the court’s attitude came after Hadiya got married to Shefin Jahan, and her father cited instances of couples missing from Kerala, believed to have gone over to fight for the Islamic state, alleging that Hadiya was in danger of the same fate. Despite her assurances to the contrary, her avowal of her consent to her marriage, Shefin Jahan’s submission of identity proofs and certificate of the legality of their marriage, the Kerala Police’s investigation upon the Court’s direction into his background and credentials that found nothing incriminating, the Kerala High Court unlawfully ruled to annul their marriage, and sent Hadiya to her parents’ ‘protective’ custody.
Shefin Jahan’s background showed that he was a member of Popular Front of India (PFI) and was handling social media accounts of Social Democratic Party of India (SDPI), the political wing of the PFI and not involved in any act of terrorism. Yet mere suspicion of terror seems to have been enough for the court to resort to deeply regressive and patriarchal arguments to justify denial of Hadiya’s fundamental right to freedom and her right to bodily integrity and autonomy. The judgment thus fundamentally violated Shefin and Hadiya’s right to marry each other by choice, and indicted Shefin without evidence. In a complete denial of women’s right to equality, it upheld the notion that women could lifelong be wards of their fathers and husbands completely, overlooking the fact that at no point does the law require, or the Constitution permit, parental consent for adult men and women entering into marriage. Such an unwarranted use of 'parens patriae doctrine' by Kerala HC to restrict liberty of an adult woman is condemnable.
Compounding this violation further, on August 16, 2017, the Supreme Court, responding to Shefin Jahan’s appeal against the nullification of their marriage, ordered the National Investigative Agency (NIA) to conduct detailed investigations into the case, to examine whether it was a case of ‘Love-Jihad’. Meanwhile, the Kerala Additional Chief Secretary, Home Department filed an affidavit in the Apex court stating that nothing in the investigation conducted by the Kerala police thus far had revealed the need for a NIA probe. The Supreme Court has subsequently observed that the High Court has no authority to annul the consensual inter-religious marriage of Jahan and Hadiya and agreed to take a relook at the order for an NIA probe. The next hearing in the matter is scheduled for October 30, 2017. Meanwhile the NIA is supposed to be probing 94 cases of ‘Love-Jihad’ in Kerala and has apparently found evidence to suggest that Hadiya and Shefin’s marriage is an instance of one.
The bogey of ‘Love-Jihad’ as a mode adopted by ‘terrorist’ groups has been raised from time to time by Hindu fundamentalist groups, and as the so-called ‘Love-Jihad’ case of Shalu and Kaleem in UP in 2014 showed, they put intense pressure on families of the persons involved and the state machinery to establish ‘Love-Jihad’. In that case an adult Hindu woman eloped with an adult Muslim man of her own accord. BJP supported Hindutva groups conspired with her parents to coerce her into announcing herself as a victim of ‘Love-Jihad.’ On escaping from her parents’ clutches, Shalu revealed that she was under great pressure to concoct this story, and that she had voluntarily eloped with Kaleem.
Given the complicity of the state machinery with such fundamentalist groups, the opacity and lack of accountability in the NIA’s functioning (its manner of gathering evidence or methods of investigation, nature and standard of proof that it adduces to establish facts), it could easily arrive at the pre-given conclusion of the existence of such a campaign, indicting some organisations in the process, with next to no conclusive evidence. The deeply patriarchal assumption that underlies the idea of ‘Love-Jihad’ is that adult women can be easily lured, misled or forced into marrying Muslim men, and thereafter becoming terrorists, that they do not know their own mind, and are incapable of choosing their own partners, and making key decisions in their life.
As Hadiya and Shefin await the Supreme Court’s hearing today on their fundamental democratic rights to equality and freedom of which they have been peculiarly deprived by law, Hadiya remains a detenue and she continues to face violence and pressure from her family and Hindu Fundamentalist groups. The fears being expressed by Hadiya about her safety in her own father’s custody reflects the irony behind the apparent concerns about the alleged terror marriages for similar women being sought to be raised. PUDR expresses grave apprehension about the ease with which Hadiya and Shefin in particular and citizens in general can be deprived of their basic democratic rights by unsubstantiated allegations of terrorism and ‘Love-Jihad’ through the agency of the judiciary and the NIA.
Anushka Singh, Cijo Joy
30th October 2017