Why does Akhila need a custodian at all?

Hadiya

Akhila, now known as Hadiya, has had to face harsh public and media scrutiny not only because she chose to convert from Hinduism to the Islamic faith, but also due to her gender.

In January 2016, 24-year old Akhila left her parental home in Kerala to convert from Hinduism to Islam. Her father, Asokan K.M., filed a habeas corpus petition before the Kerala High Court, alleging that his daughter had been taken away and he was unaware of her whereabouts. He demanded that she be produced. So Hadiya appeared before the High Court through her lawyer and gave a sworn affidavit stating that she had left her parental home voluntarily. Since she was now an adult, she said, she was well within her rights to choose a religion of her choice and follow a faith which appealed to her. The High Court, after interacting with Hadiya was of the opinion that she was no under any illegal confinement, and accordingly permitted her to live at a place of her choice.

However, in August 2016, Hadiya’s father once again approached the High Court with a habeas corpus writ, alleging that his daughter had been forced to convert to Islam and was possibly being taken out of the country by Muslim extremist organisations. During the course of hearing, the High Court observed “…it is necessary to bear in mind the fact that the detenu 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…”

The writ of habeas corpus is to provide a prompt and effective remedy against illegal detention and its purpose is to safeguard the liberty of the citizen, which is a precious right not be lightly transgressed by anyone.

In its judgement on May 24, 2017, the Kerala High Court declared Hadiya’s marriage to her husband Shafin Jahan, a Muslim, null and void and directed she return to the protective custody of her Hindu parents. Aggrieved by the decision, Shafin Jahan approached the Supreme Court seeking the release of his wife from the illegal custody of her parents, and setting aside the High Court’s order which had quashed their marriage.

The High Court while passing such an order had lost complete sight of Hadiya’s individual freedom. Moreover, there was no rationale basis she had been illegally detained by her husband.

This is what the bench headed by Chief Justice of India, Justice Dipak Misra, heard on October 3. The Bench observed that since the girl was 24 years old, she cannot be held by force by her father and held hostage against her wishes. But the Bench also said it would consider appointing an alternate custodian for her.

The view of the bench regarding the High Court’s order is in the right direction. However, the question of custody does not arise as Hadiya is an adult and cannot be forced into the care of any custodian. The Supreme Court lost sight of the various statutes such as the Indian Majority Act, 1875 and Guardianship Act, 1956 etc., wherein a person, including a woman, is said to be under the custody of her father/ guardian till she attains majority which is 18 years of age.

The Bench’s view is feudal in nature, as the concept of identity of women is linked with India’s patriarchal society, but totally improper today. Many laws have come up for the empowerment of women. The Constitution itself provides equal rights to both sexes.

The identity of a woman, in earlier times, was determined by the identity of their family. By applying the same feudal principle in Hadiya’s case, the Supreme Court is moving regressively. The identity of a woman who has attained majority cannot be said to be determined by the identity of her family or father. Parental authority can be exercised while their son or daughter is a minor, but the moment they become a major, this exercise becomes limited. After attaining majority, a person has the right to cast her vote, get married to whoever she wishes to, enter into a contract, give consent and choose any religion she wishes to practice.

By questioning Hadiya’s voluntary conversion, there is reinforcement of the profound patriarchal mindset. The idea of appointment of a custodian for the Hindu girl who voluntarily converted to Islamic faith, and subsequently got married to a Muslim man, is the patriarchal mindset of the ‘need to protect women’ and the disability of the male-centric Supreme Court bench to empathise with the liberty, freedom and equal rights under which women are protected by law.

Hadiya, 24 years of age, is not a minor and cannot be considered to be vulnerable or weak, merely because of her gender. In a society where a 24 year old boy/man would not be considered weak or vulnerable, similarly, the question of vulnerability or weakness cannot arise in the case of a girl who has already attained majority.

The girl, after attaining majority, is under no obligation under law to be in the protective custody of her father and has the absolute right to choose the religion of her choice; the parents under such circumstances have no right to question the choices of their daughter. When a major girl exercises her fundamental right under Article 21 by choosing her partner, the Court cannot resist such an expression of opinion. Whether or not the decision is against the wishes of her parents, but when a fundamental right is exercised by a major girl, the Court will have to enforce the same.