Hadiya was 24 years old, an adult woman. She was born as Akhila, and was studying medicine in Coimbatore. She converted to Islam of her own free will and then married Shafin. This should be an unremarkable story in the world’s largest democracy whose Constitution enshrines freedom to follow the religion of one’s choice.
The story, however, did not end there. Hadiya’s parents filed a habeas corpus petition in the High Court of Kerala under Article 226 of the Constitution of India, meant to be exercised in cases of illegal detention, to have her produced in court.
They complained to the police that this was a case of fraudulent marriage against the wishes of her parents and therefore should be disallowed.
The high court admitted the petition and after going into the details opined that, “Her marriage being the most important decision in her life, can only be taken with the active involvement of her parents.”
Hadiya refused to go to her parents’ home and preferred to stay in an institution for women. While staying there, she was refused the use of a phone or to keep in touch with her husband and allowed to meet only her parents.
The local authorities were asked not to issue a marriage certificate to her and her husband. Subsequently, the high court declared that the marriage was a sham, annulled it, and gave her custody to her parents.
Only when Hadiya’s husband approached the Supreme Court, were the fundamental questions such as why can’t a major woman convert and marry out of her own free will, asked. Questions which even the Kerala High Court failed to ask. The Supreme Court upheld the validity of the marriage and allowed Hadiya to go with her husband.
Law of the Land Not Enough
Recent developments suddenly make it clear why it is unsurprising that Hadiya’s freedoms and marriage had to be adjudicated on and declared by the highest court in the land.
Apparently, in modern India we do not live merely by the law of the land. Rather, there is another set of unwritten, but well-entrenched, conservative codes by which Indians live. These form a religion based and socially circumscribed system, the aim of which is to uphold the hierarchy and purity of the religion, caste, and kinship system.
And if this hierarchy is to be maintained, it is of utmost importance that Indians, especially Hindus, adhere to strict laws of endogamy where interfaith and inter-caste alliances are anathema. Never mind what the Constitution and the books of law say.
In such a context, when an adult, educated woman decides to marry outside her religion, she is no longer a major and responsible citizen of India but a misled person who needs to be reprimanded.
It is also not surprising, then, that a phenomenon named ‘Love Jihad’ has caught the imagination of people to the extent that people no longer question the concept of ‘Love Jihad’ but merely try to differentiate which inter-religious marriages are to be included and which are to be excluded from this definition.
Does it then surprise us that the Uttar Pradesh government has passed a law on the subject, while many other states are actively considering it?
Hadiya’s case is but one example of how laws have been ignored or selectively interpreted by parents and aided by legislators and law enforcers, mostly to control choices of marriage made by young people, especially women.
It now appears there may be one more change in the law in the offing which will only entrench this kind of misuse of it. If this argument seems baffling, then let us look at how some of the laws have been (mis)used.
Special Marriage Act
The Special Marriage Act, 1954 was enacted to enable interfaith marriages to be registered without any difficulties. However, unlike marriages under personal laws which need no notification to the public or the authorities, this secular law requires that a notice be served and made public one month in advance to invite objections from anyone to the marriage.
Young people in interfaith relationships who married by choice and against the wishes of their family, find that this provision of public notices which have their full names and addresses and which are often served on their homes, violates their privacy and make them a sitting duck to be targeted by those opposed to these marriages.
There have been several cases of either parents or vigilante groups opposing these marriages once the notice has been served and the couples are often forced to flee for their safety.
Age of Consent
In 2012, a law was passed to protect children from sexual abuse called the Protection of Children from Sexual Offences Act – or POCSO Act. While such a law is important, the law went overboard and criminalised all sexual contact before the age of 18 years for girls and boys. This happened when the age of consent for sex in India had been 16 years since 1940 as per the Indian Penal Code (IPC).
Subsequently, in 2013, the age of consent in the IPC itself was amended to make it 18 years. In two strokes, the law decided that adolescents under the age of 18 years are immediately incapable of consenting to sex which they were capable of doing till 2012.
The law not only delegitimised the agency of young girls in the age group of 16 to 18 years to recognise whether they have been assaulted or not; but also negated the fundamental basis of deciding the violation – the voice of the woman; her testimony.
This is because even if the girl is one day short of turning 18 years, her testimony is generally disregarded while filing a case of statutory rape. And this doesn’t even change once the girl attains majority.
No wonder then, that multiple studies have shown that between 23 and 54 percent of rape cases filed under POCSO and IPC resulted in an acquittal because the girls simply told the court that they had had consensual relations with the accused, and refused to testify against the boy.
The cases are generally filed by the parents of the girls who had eloped with their partners and wanted to punish the boys. That these boys were in most cases of a caste or religion or kinship not compatible to the girls, cannot be an incidental finding. There seems to be a pattern to this. The Justice Verma Committee report clearly stated that the child abuse law (POCSO, 2012) was meant to protect children from abuse, and not to punish them for consensual sexual activities, but the committee’s recommendation to modify the law was not heeded.
From these examples, it is clear that laws don’t function as they may have been conceived to. They are selectively enforced and reinterpreted to suit the requirements of those who wield power in each situation. They are especially troublesome for young people who live and marry in contravention to ‘norms’ set by society.
Age of Marriage
Within this already complex scenario, on 15 August 2020, the Prime Minister announced from the ramparts of the Red Fort, in his Independence Day speech that they are considering the option to raise the minimum legal age of marriage from 18 years to 21 years.
Before this, a taskforce was already set up which had among its mandate to examine and recommend on matters related to age of marriage, lowering maternal mortality ratio and improving maternal health, as also to recommend amendments to laws which will support the recommendations of the task force.
One would have ignored it as just another harmless law which has limited utility. However, facts from the ground show that law does not help, but may harm the interests of young people.
One in four women (27 percent) between 20 and 24 years were married under the age of 18 years as per National Family Health Surveys (NFHS); and yet, the Crime in India Report, 2018 recorded only 501 cases filed under the Prohibition of Child Marriage Act, 2006.
Clearly it is not the law, but other factors which have helped in the consistent decrease in underage marriages as data shows us. The number of underage marriages reduced from 47 percent in 1998 to 27 percent in 2015 as per the NFHS.
Evidence shows that the main reasons behind this decrease have been increasing access to education for girls, reduction in poverty and efforts to build the agency of girls; though there is still a long way to go. Especially in the COVID context where distress and poverty has increased, there are already reports of a slide-back on the gains made thus far.
On the other hand, the very reason that the law has not been used much is because parents and community members are many times in agreement with conservative social norms which underpin early marriages and officials coming from the same mindset are loathe to take action.
In this scenario a legal amendment to raise the minimum age of marriage for girls rings ominous. In a society where women are routinely infantilised and laws selectively interpreted to suit the decision makers, any change in law is bound to have unforeseen consequences, such as driving early marriages underground.
If a Hadiya has no agency to enter into a marriage of her choice even at the age of 24 years, imagine how much more power would parent and community, not to say the law enjoy over girls if the age of marriage were raised to 21 years?
Empowerment or Age?
Globally, most countries have accepted that children attain majority at the age of 18 years. However, if not accompanied by agency to make their own decisions, and an enabling environment to exercise that agency, then age is only a number.
For girls this would include access to higher education, opportunities to earn a livelihood, respect for their decisions, safety and security to make those decisions even if it encompasses a life without marriage, and believing that women and girls are independent human beings capable of making their own decisions.
Until that happens, whether 18 or 21 years is the age of marriage, women will continue to be infantilised and laws selectively interpreted on their behalf.
As in the case of Hadiya, enabling conditions need to go much beyond individual factors, to make society a truly inclusive place to live in. In such a society changing your faith will not be such a contested phenomenon, neither will inter-caste and inter-faith marriages be.
For that matter, poverty and inequality, which are deep rooted causes of early marriages will not be glossed over in favour of a quick fix and potentially problematic amendment in law.
(Amita Pitre is the lead specialist, gender justice at Oxfam India. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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