Monday, August 28, 2017

Forced Marriages in South Asia: Myth or Reality?

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 and 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.


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.

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Mayraj said...
Loveless Patriarchy

The patriarchal complex of state, society and family converge to deny Hadiya both agency and dignity.
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.

Riaz Haq said...

Love jihad bogey: Hadiya committed no crime. Why has she been in confinement for a year now?
The Indian judiciary is supposed to protect a citizen's liberty. But here, it has arbitrarily taken it away, citing ‘Indian tradition’.

On August 22, the Supreme Court of India struck a significant blow for women’s rights. The court scrapped the practice of instant triple talaq, which gave Muslim men arbitrary powers to end a marriage. The move bought India in line with much of the rest of the world, where most Muslim legal systems have already barred the practice.

It is therefore a curious irony that the same court had also struck a blow against women’s rights just a week before the triple talaq judgement. On August 16, the Supreme Court ordered the National Investigation Agency to inquire into the religious conversion and marriage of Hadiya, a 24-year old woman from Kerala. In this, it backed an earlier judgement of the Kerala High Court. While Hadiya has converted to Islam and then married of her own choice in 2016, both courts seemed to disregard her own thoughts on the matter, preferring instead to let her father decide for her.

Some media reports have presented this as a case of “love jihad”, the conspiracy theory that Muslim men woo Hindu women with the express purpose of pressuring them to convert them to Islam. This is a misrepresentation. Hadiya had converted to Islam long before her marriage. The main issue here is: does India believe an adult woman has a mind of her own?

From Akhila to Hadiya
Hadiya – Akhila before her conversion – is from Kottayam in Kerala. She left home in 2011 to study for a bachelor’s degree in homeopathy in Salem, Tamil Nadu. Here she made Muslim friends and started to follow Islam.

Matters soon reached a head. Akhila complained that her family forced her to perform rituals relating to her grandfather’s death in November, 2015. In January, 2016, Hadiya left her home and moved to Satya Sarani, a Muslim educational non-governmental organisation, in the Malappuram district of Kerala.

Akhila’s father, Ashokan, filed a writ of habeas corpus with the Kerala High Court, asking it to locate his daughter. On January 19, Hadiya presented herself to the court. As a consequence, on January 25, the Kerala High Court dismissed Ashokan’s petition, noting that Hadiya was not under illegal detention and was staying in Satya Sarani of her own free will.

Forced confinement
Given that it had been established that Hadiya had converted of her own free will, the matter should have ended here. But in August, 2016, Ashokan filed another writ of habeas corpus in the Kerala High Court, alleging that Hadiya was likely to be taken to Syria to fight for the Islamic State. This allegation of a link with the Islamic State was backed up with little proof. Moreover, Hadiya argued in court that since she did not possess a passport, leaving the country was impossible. Yet, curiously, Ashokan’s writ was not dismissed.

It is here that things start to get extremely convoluted as the Kerala High Court started to restrict Hadiya’s liberty. On August 17, the court ordered the Kerala Police to put her under surveillance. On August 22, the court tried to convince the young woman to accompany her parents to their home. When she refused, the Kerala High Court did something astonishing: it ordered her to be taken out of Satya Sarani and put into a hostel for women. A month later, on September 27, Hadiya complained in writing that for no fault of hers, she was “in the custody of the court without being permitted to interact with anyone else”.

In doing so, the court invoked the colonial concept of “parens patriae” jurisdiction, under which the monarch in Britain was considered the parent and the protector of all his subjects. This concept is usually invoked when courts conclude that an individual is not in a position to defend themselves.

Anonymous said...

Their National Investigation Agency (NIA) has been given judiciary clearance to investigate "love jehad"!