The attitude of the Kerala high court and Supreme Court of India towards the autonomy and rights of adult women, as displayed in the ongoing Hadiya case, is deeply disturbing.

A young Hindu woman named Akhila befriended a young Muslim woman, Jaseena. Over time, Akhila became close to Jaseena’s family as well and she embraced the Muslim faith, changing her name to Hadiya. Her father filed two petitions in the court alleging that his daughter had been forcibly converted to Islam. Both petitions were rejected by the Kerala high court court, which held that she was of sound mind and capable of making her own decisions. Her father then filed a third petition, this time before another bench of the high court.

While this petition was being heard, Hadiya signed up for a groom in a matrimonial website and of several applicants, chose to marry Shafin Jahan, a young man who works in Muscat and has been a member of the Social Democratic Party of India (SDPI). The high court this time upheld her father’s petition, annulled Hadiya’s marriage to Shafin and “handed over” the 24-year-old woman to the custody of her father. The verdict also indicated that there was a conspiracy to turn Hindu women against their parents, convert them to Islam and take them to Syria/abroad to join terrorist groups and that this conspiracy deserved a probe.

Shafin approached the Supreme Court to overturn the annulment of his marriage. In this matter, the SC bench has not yet summoned Hadiya to hear her version of the matter. Instead, it has ordered a National Investigation Agency (NIA) probe to see if there is a larger conspiracy by terror groups to convert Hindu women to Islam and radicalise them.

The language adopted by the Kerala high court and implicitly endorsed by the Supreme Court in this matter raises the question – Do courts have no obligation to respect the constitutional values of autonomy and privacy of adult women?

We are used to khap panchayats – kangaroo courts – disrespecting and curtailing women’s autonomy, and women’s hostels in India routinely infantilising adult women and treating them as ‘wards’ of their male relatives. Will the courts in India – the custodians of the constitution – also do the same henceforth?

Can an adult woman be sent into the “custody” of her father?

The Kerala HC verdict noted the contention of the father’s counsel that “as a parent it is his right to give away his daughter in marriage and to ensure that the person who marries her is a suitable person.” Nowhere did the verdict rule – as it ought to have – that in fact no parent can claim such a right over an adult daughter. Instead, the court stated the opposite.

Giving short shrift to Hadiya’s lawyer’s argument that she is an adult and therefore the master of her own life’s decisions, the verdict stated:

Though the learned senior counsel has vociferously contended that the detenue is a person who has attained majority, it is necessary to bear in mind the fact that the detenue who is a female in her twenties is at a vulnerable age. As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married. We consider it the duty of this court to ensure that a person under such a vulnerable state is not exposed to further danger …

Granting custody of Hadiya to her father, the Kerala HC declared, “A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways…”

There are several points to note here. The court is repeatedly referring to a 24-year-old woman as a “girl”. It is repeatedly stating that a 24-year-old adult who is “female” is “weak and vulnerable”, it also refuses to refer to Hadiya by the name she has adopted, and instead refers to her as Akhila.

Most dangerously, in a country where there is an epidemic of “honour” crimes where adult women are incarcerated and tortured – and even killed – by their parents to prevent them marrying across caste and community barriers, the court cites “Indian tradition” to claim that “the custody of an unmarried daughter is with the parents, until she is properly married”. (Note the word “properly” here – Hadiya’s self-arranged marriage to Shafin is “improper” because her father did not select the groom and give away the daughter in marriage.) The SC order also refers to Hadiya as “the concerned girl, namely Akhila.”

The Kerala HC verdict also makes disturbing assumptions about the supposed conduct of “normal/natural” daughters and “normal” young women:

Ms. Akhila is the only child of her parents. There are no other persons in this world, who would consider the welfare and well-being of their daughter to be of paramount importance than her parents. The nature (sic) provides numerous examples of even animals taking care of and protecting their progeny, sacrificing their very lives for the purpose. The Homo sapien is no exception. The forces operating from behind the curtains have succeeded in creating a hostility (sic) in the mind of Ms. Akhila towards her parents.

It is implied here that any feelings of hostility of a daughter towards her parents can only be unnatural – induced by sinister “forces operating from behind the curtains.”

Perhaps we need to remind the judges that it is only among Homo sapiens that one finds the phenomenon of parents killing their daughters for transgressing the norms of caste, community, and gender to love and marry? In 2010, Nirupama, a young journalist living in Delhi, was killed by her parents when she was visiting her home in Ranchi because she was born to Brahmin parents and had fallen in love with a non-Brahmin classmate. Such custodial violence against daughters inside the four walls of their homes is sadly the norm, not the exception, in India.

Are the honourable judges willfully ignoring the fact that the denial of autonomy by their parents quite naturally does create hostility in the minds of young women? The will to be autonomous and free – supported by a highly-developed sense of self – is an urge natural to Homo sapiens. Young women defy parental “authority” all the time – to pursue careers, to pursue political activism and social movements, to fall in love, to get married, simply to live without the suffocating weight of patriarchy dictating their every decision. Women’s bid for freedom from the four walls of the home is the stuff of literature, film, poetry.

Gorakh Pandey’s poem ‘Band Khidkiyon se Takrakar‘ or ‘She collides against closed windows’, eloquently describes how home is prison for many Indian women:

In every home are prison walls

Colliding against the wall

She falls

Alok Dhanwa’s poem ‘Bhaagi hooyi ladkiyan‘ (Runaway girls) is a is an ode to a woman in flight from the her house that is like a tank, like a prison:

Chains of the home

Become so much more visible

When a girl runs away from home…

Outside the large, locked tank

That is your house

Girls have changed quite a lot

Why are our courts now sentencing an adult woman – against her will – to the custody of the prison walls and chains of her father’s house? Why is Hadiya now being held in virtual house arrest in her father’s house – the house surrounded by police and reportedly also by Sangh cadres, preventing her from meeting even accredited journalists?

The Kerala high court verdict is also notable for the hostility it displays towards conversion:

“…it is not normal for a young girl in her early 20s, pursuing a professional course, to abandon her studies and to set out in pursuit of learning an alien faith and religion.”

Would the high court have felt the same, one wonders, if the young woman in question had abandoned her studies in order to marry a man of her parents’ choice? Or if she had, with her parents’ approval, joined an ashram or a Hindu religious cult?

Interestingly, the high court found the self-arranged nature of Hadiya’s marriage sinister and pitted it against “love marriage”: “This is not a case of a girl falling in love with a boy of a different religion and wanting to get married to him. Such situations are common and we are familiar with them. In all such cases, this court has been consistent in accepting the choice of the girl. However, the case here is different. It is an admitted case that this is an arranged marriage.”

Note the irony here. If a Hindu woman falls in love with a Muslim man, she is seen to be a victim of “love jihad”, if she embraces Islam and then arranges her marriage through a matrimonial website, the lack of love in her choice of partner is seen as sinister.

Have we forgotten the Meerut ‘love jihad’ case?

In the wake of the Supreme Court ordering an NIA probe, some TV channels are running high-pitched scare stories on the so-called “love jihad tapes” (audio tapes of a Hindu woman claiming to be a victim of love jihad).

These tapes bring to mind the so-called ‘Meerut love jihad case’ of 2014. A 20-year-old Hindu woman from Meerut, Shalu, who had been a teacher at a madrasa, had claimed, on camera, in August 2014, that she had been abducted, gang-raped and forcibly converted to Islam. She said that this was part of a larger conspiracy in which other Hindu women were also victims. A young Muslim man named Kaleem and his family members were duly arrested and booked for these crimes, based on her allegations. The Sangh parivar and the BJP went to town, making the video of Shalu’s allegations go viral.

In November 2014, Shalu finally escaped the confines of her parents’ home, where she had been held against her will. She told the police that she was in love with Kaleem and had been illegally confined by her parents. She said she had been pressurised into making allegations against Kaleem and his family, in a situation where her life was in danger of “honour killing.” Shalu is now married to Kaleem.

Inter-faith marriages, abduction and radicalisation of baby girls

If there is any actual evidence that Hadiya’s husband Shafin or her friend Jaseena have ISIS links, the police should place such evidence on record and book them for those crimes. Whatever its politics, the SDPI is a registered party – it cannot be insinuated that Shafin’s membership of this party indicates terror links.

There is actually no evidence of “love jihad” or of a “conspiracy” to convert Hindu women into Islam – yet the SC has sent the NIA on an expedition to probe such a conspiracy, without even bothering to hear or heed the woman’s opinion in the matter. The irony is that where there actually is vast, credible evidence of organised violence by Sangh groups against Hindu women in inter-faith marriages and the abduction of baby girls to brainwash and radicalise them as Sangh cadres, the courts have chosen to ignore this.

A Cobrapost sting operation in 2015 caught BJP and Sangh leaders on camera admitting that not a single genuine love jihad case exists and openly boasting of inflicting violence on women – in the name of ‘rescuing’ them from inter-faith marriages. These men, while on camera, also boasted of committing ‘Hindu terrorism’. On tape, Sanjay Agarwal, a BJP candidate in the municipal elections in Muzaffarnagar, revealed his modus operandi of whipping up the bogey of “love jihad” and “cow slaughter” in order to garner support for Modi. He described the brutal violence he and other Sangh cadre inflict on Hindu women to make them renounce their relationships with Muslim men: “If she doesn’t listen to us, we hit her. We get her beaten up. We misbehave (Poori badtameeze karte hain). Such a girl is [hit] with a wooden board (bilkul phatte se bajwate hain).”

RSS leader Omkar Singh claims to have “saved” 125 girls from the “clutches of Muslims”. He boasts on camera that this is done by filing false rape cases against the Muslim men. “Hum uss ladki ko pehle samjhate hai lekin ladki manti nahi phir ham ladke pe case lagwate hai pharji (We first try to make the girl understand and if they still disagree, we file false cases against their men).”

BJP MLA Suresh Rana, also on camera, reveals how they coerced a girl to falsely accuse Muslim boys of rape in a Shamli ‘love jihad’ case:

Now I will tell you the truth. We charged them with rape, but it wasn’t rape, it was consensual. We slapped a rape case against them to teach them a lesson. The girl wasn’t ready to give a statement against them. If you look at the case in depth, the girl was willing. Three people didn’t take her away by force.

Rana also casually justifies the open use of violence to force Hindu women to falsely accuse Muslim men: “A girl is a girl after all. It has always been said that they change in five minutes according to the circumstances … they insist, ‘No matter what, I will stay with him. I won’t go without him’, if she is taken aside and given two slaps, then she herself goes and gets the FIR registered claiming, ‘They sexually assaulted me … he has been doing it for a month’. Then she will tell the whole story and slap a case on him. You can mould a girl the way you want.”

Krishna Sena founder Shiv Kumar Sharma explains how his organisation incites riots in the name of ‘love jihad’ rescue operations: “We create a lot of chaos and rioting and employ every trick… If she says she loves the boy and has married him and would go with him, in that case, we try our best to find out some way to separate them. We use false documents to declare her a minor or not in right frame of mind so that the girl is handed over to her family.”

Ravish Tantri, the chief of Hindu Unity Forum in Kerala, threatens to kill inter-faith couples: “When the girl goes from the ‘conversion centre’ to the court, we warn her that if she does not give a statement agreeing to her parents and does not marry the guy prescribed by us, then the moment she and her husband step out of the court, they will be killed by our people.”

BJP MP Hukam Singh admits that women tend to stand their ground in police stations and declare that they have gone voluntarily with the Muslim men and he feels Modi’s rule might solve this problem: “The strategy was, let Modi come to power, then no Mohammedan will dare look at any of Hindu girls let alone touching them.”

BJP leader Sanjay Agrawal describes how courts, lawyers and cops all cooperate with such violence, helping to hand over Hindu women into their parents’ custody, so that they can be coerced to renounce their Muslim boyfriend or lover:

“A lot of advocates are swayam sevaks. They keep an eye out for Hindu girls registering at the city magistrate or the sub-divisional magistrate’s office for marriage and the date given. They find out who her lawyer is and if she is in the lawyer’s chamber. Then they call us. We go there with our whole team… 50, 60, 70 people… We don’t let the girl appear in court for days. We say that the girl is not listening. They [police] say it’s alright, we will see her tomorrow. If she isn’t listening even tomorrow, they say it’s alright. They help us a lot. They send her mother to her to talk … Judges help us, so does the senior superintendent of police … The judge gives the girl to us in his judgment. He hands her over to her parents. Once she is under her parents’ control, we can get her married in three days.”

On tape, Cijiith from the Hindu helpline in Ernakulam, Kerala reveals that his organisation drugs the women to bring the girl under control if she is “being too aggressive” and he claims that parents bring their daughters from as far as Uttar Pradesh and Maharashtra for such “drug treatment” in Ernakulam, where the women are held captive and drugged in a hospital controlled by his organisation.

Why has the honourable SC not taken suo motu notice of this sting operation which suggests a widespread all-India Sangh conspiracy to whip up riots in the name of “love jihad” and “cow slaughter”? Why is physical and mental violence, coercion and even the use of mind-bending drugs by the Sangh outfits against women not seen as “terror” – why has there been no NIA probe into such violence?

In August 2016, Neha Dixit broke a painstakingly researched story of how the RSS was trafficking adivasi baby girls from the Northeast – against their parents’ will – to “Hinduise” them and radicalise them as RSS cadres. Does this conspiracy, in the SC’s view, not call for an NIA probe?

Why are well-documented instances of force and violence by Sangh outfits against girls and women, to make them give up inter-faith marriages or to “Hinduise” trafficked adivasi girls, not seen as a “terror conspiracy” deserving a probe? Why, instead, is an instance of an adult woman choosing to change her faith and choose her own husband seen as inexplicable, except as a result of sinister, mind-bending coercion by terrorist outfits?

Legitimising violence against women’s ‘autonomy’

A six-month analysis of 600 rape cases that came up for trial in Delhi’s district courts in 2013 revealed that “over 40% dealt with consensual sex, usually involving the elopement of a young couple and the girl’s parents subsequently charging the boy with rape”.

What do these numbers tell us? Each of these false ‘rape’ cases actually hides the very real and common violence against daughters and their autonomous choices by their own parents. In this context, the Kerala high court verdict upholding the “Indian tradition” whereby “the custody of an unmarried daughter is with the parents, until she is properly married” is downright dangerous. As are indications that even the SC is showing such contempt for women’s autonomy.

We know that common sense notions of morality and culture in India and South Asia see adult women as the property of their fathers, brothers and communities. Political parties often echo and bolster such ‘common sense’. The BJP and sangh, which follow the “core ideology” of the Manusmriti, in fact peddle such notions as the law of the land in the imagined “Hindu Rashtra”. This is why Yogi Adityanath, now chief minister of Uttar Pradesh, elaborately explained in his article on “Matrshakti — Bharatiya Shakti ke Sandarbh Mein” (Women’s Power In the Context of Indian Power) that a woman must never be left free and must forever be under the protective custody of her father in her childhood, her husband in her youth, her son in her old age.

When such violence against autonomy is not only widely accepted as “normal” in society and where there is a political push by those in power to equate such violent curtailment of women’s autonomy with patriotism, the role of the courts become crucial.

The courts are one institution where India’s women expect that their autonomy, privacy and freedom, as guaranteed in the constitution, will be respected – that courts will be guided by and will uphold what Ambedkar described as “constitutional morality” rather than common sense morality. Sadly, in the matter of Section 377 and the rights of LGBT persons as well as in the Hadiya matter, it seems that the courts too are subordinating constitutional morality to patriarchy.

Kavita Krishnan is secretary of the All India Progressive Women’s Association (AIPWA).