JOIN USA young woman named Hadiya from Kerala had to appear before the Supreme Court on November 27 for a choice she made in her life. As she elegantly entered the court room, everyone present was trying to get a sight of this brave woman who made headlines across the country. She didn't feel perturbed even for a second seeing the three learned judges or the sea of lawyers who had gathered in the courtroom.
Everybody's eyes were glued on her when the judges began their inquisition, as this was one of those rare occasions wherein a young woman grabbed all the attention in the highest court of the land.
Hadiya, who was earlier Akhila Ashokan, studied in her village school in TV Puram and thereafter went to Salem, Tamil Nadu, to pursue a Bachelor's degree in Homeopathic medicine. And then, she did the unthinkable. She defied her Hindu roots, her family and societal norms, converted to Islam and later on, of her free will, married Shafin Jahan.
Hadiya's father petitioned the Kerala high court, but his prayers did not yield the success he desired. Things took an interesting turn when the National Investigation Agency got involved, at the instance of the apex court, to probe the matter.
This led to Hadiya's father again approaching the high court. This time, the Kerala high court annulled the marriage of Hadiya and Shafin Jahan under Article 226 of the Constitution. This time, Shafin Jahan went to the Supreme Court against the high court ruling.
Legal position
The law dealing with the proposition at hand is amply clear. To start with, Article 16(1) of the Universal Declaration of Human Rights clearly states that "Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution".
Article 18 states that "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance".
The Constitution of India guarantees certain fundamental rights to our citizens, including freedom to make one's own choices and right to profess any religion based on their belief and liking.
The Supreme Court in Lata vs State of UP has categorically stated that this is a free and democratic country, and once a person becomes a major, he or she can marry whomever he/she likes.
In the recent case of Justice K S Puttaswamy vs Union of India, it has been observed by Justice Chandrachud that privacy represents the core of the human personality and recognises the ability of each individual to make choices and to take decisions governing matters intimate and personal. Hadiya is an adult woman, thereby she has a right to make her own choices, be it regarding her marriage or the religion she wants to follow.
A crucial aspect, which was overlooked by the Supreme Court, is whether high courts have the power to annul a marriage under Article 226 of the Constitution. The high court of Kerala had annulled the marriage of Hadiya and Shafin Jahan by decreeing a writ of habeas corpus.
Clearly, the high court went beyond the ambit of its power under Article 226 when Hadiya was produced before it and even more so when she clearly stated that she had not been forcibly confined by anyone. When the matter is taken up in January, it will be interesting to see what the Supreme Court has in store on this proposition and interpretation of law.
Women in Indian society
We live in a society that is predominantly patriarchal in nature, and where women are treated as family property rather than independent human beings. It has been 70 years since Independence, yet we are unable to get freedom from our own evil practices, such as the Devadasi system or the barbaric acts of 'honour killing', the mere mention of which send shivers down the spine of any woman.
It's high time that women in our society began to exercise decisional autonomy to make choices when it comes to their career, marriage and other aspects of their lives.
A progressive and civilised society is one that treats man and woman equally and with dignity. To expect that women should think or choose what a man or society wants her to think or choose is a medieval mindset.
Freedom of choice and dignity of a woman cannot be allowed to be abrogated even for a moment in a democracy. Choice is inherent in every freedom guaranteed by the Constitution. Freedom without choice is no freedom.
(The writer is a lawyer practising in the Karnataka High Court)