It was a forward-looking and welcome judgment that the Indian Supreme Court pronounced recently. The right of adult individuals to make their own choice regarding their where they live, how they dress and whom they choose to marry or not marry was upheld by the Supreme Court which is laudable. However just about a month ago, the same Supreme Court saw fit to appoint a guardian with respect to a 25-year-old woman who chose to marry a man against her parents’ wishes. What accounts for this strange flip-flop; this bizarre double standard?
In an order pronounced on 5th January 2018, a bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud made a welcome pronouncement. The judges held that a when a person attains majority, they are free to make their own choice with regard to a range of matters and the court cannot assume the role of a legal protector. "The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of super guardian being moved by any kind of sentiment of the mother or egotism of the father. We say so without any reservation," said the court.
This case appears to be that of ‘custody’ of a 19-year-old girl, whose father lives in Kuwait and mother is in India. The girl chose to pursue her studies in Kuwait while living with her father so that she could pursue her career there. It was the mother’s case that the girl was acting under pressure from her father. It was in this connection that the court pronounced that the girl had the right to make her own choice when she stated her preference in court.
In the matter of Hadiya, the same three judges saw fit to make a pronouncement that was rather different. Hadiya (earlier Akhila) had converted to Islam and subsequently married a Muslim man. Her parents who had kept her under virtual house arrest for months, alleged that this was a case of indoctrination and asked that the ‘custody’ of Hadiya be handed over to them.
In this matter, the Supreme Court chose not to listen to Hadiya, who spoke in open court about wanting her freedom and wanting to return to her husband Shafeen Jahan. Instead of refusing to interfere in the personal life of an adult woman who had made certain religious and relationship choices, the Supreme Court appointed as her ‘guardian’, the dean of Hadiya’s Salem-based homoeopathic college. She was denied the right to exercise her own will, her own choice. She was instead bundled off to school rather like a recalcitrant child!
Hadiya's Case
The Hadiya case was clearly a political hot potato and the courts decided to take a middle path here, it would seem. They granted neither what the petitioner father wanted, nor what Hadiya herself clearly wanted. The Court inexplicably appointed a ‘guardian’ in respect of a 25-year-old adult in full possession of all her faculties. This was a decision that was clearly meant to mollify those religious hardliners who subscribe to the myth of Love Jihad while appearing to rule in the interests of a young woman – by directing that her education is continued with.
Politics and religion should not be allowed to impinge on a woman’s choices and her personal liberty. Since there was no political or religious element in the matter of the 19-year-old, who wanted to live with her father, the Court delivered a forward-looking, enlightened judgment. However, in the matter of Hadiya, the court appears to have permitted itself to be led by political considerations and religious sentiment; appearing to find some merit in the oft-touted but nonsensical and unsubstantiated idea of Love Jihad.
The law ought to be blind. It cannot be permitted to be influenced by the political climate and the expectations of one or other religious groups. And yet the Supreme Court evidently feels that these factors should be allowed to influence the outcome of matters before them. Does the Supreme Court feel that some women are able to choose wisely for themselves but that others are either unable to do so or should not be permitted to do so? Is it the SC’s view that some girls should be permitted to live freely but not others? If yes, that's unfair at many levels.
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