- What Supreme Court did is just transfer of her custody from parents to an institution. She is still not free. It is just a transfer of confinement of an independent citizen — Navaid Hamid, President, Muslim Majlise Mushawarat
- The issue at hand was her right to convert and to marry whomever she wanted as an adult but, curiously, this fundamental right was overlooked in this case –Dr. Zafarul Islam Khan, Chairman, Delhi Minorities Commission
- Amazing that the SC did not set the brave 25-year-old Hadiya free to live with whoever and wherever and appointed college Dean as her guardian — Supreme Court lawyer Prashant Bhushan
- From day one, Hadiya had been clear about the fact that her conversion and marriage were both consensual. She was kept in custody to suppress her own voice and intent and pressurise her to give up — Kavita Krishnan, Secretary, All India Progressive Women’s Association
Mumtaz Alam | Caravan Daily
NEW DELHI — The Supreme Court’s silence on Kerala woman Hadiya’s contested conversion and marriage with a Muslim man while setting her free from her Hindu parents’ custody has surprised some Muslim community leaders. “It’s very strange that Hon’ble judges of the Supreme Court have questioned the guardianship of a married woman,” said Navaid Hamid, President of All India Muslim Majlis-e-Mushawarat, a confederation of Muslim organisations. Dr. Zafarul Islam Khan, Chairman of Delhi Minorities Commission, shared his sense of unease saying: “I am baffled how the Hon’ble court refused to allow Hadiya to go with her husband…”
In its interim order on Monday, the top court directed that 25-year-old Hadiya, who was born into a Hindu family but had converted to Islam some years ago and later married a Muslim man, would be taken to the Sivaraj Homeo Medical College in Salem district of Tamil Nadu at the earliest so that she could resume her Bachelor of Homeopathic Medicine and Surgery.
The order effectively released her from the 11-month custody against her will – first five months at a woman care centre and then six months at her parents’ home, both at the instructions of the Kerala High Court.
The SC, after hearing Hadiya in person, passed the order on the July 2017 petition of her husband Shafin Jahan who had challenged the Kerala High Court order of May 2017 whereby Hadiya’s conversion to Islam was contested, her subsequent marriage with Jahan was annulled and she was sent to her parent’s custody under round-the-clock police watch.
However, the apex court did not deal with her conversion and marriage and fixed the next date of hearing for January 12. Also, it allowed the NIA (National Investigation Agency) to continue its investigation into her conversion/marriage which was dubbed by the government and her parents as part of the ‘Love Jihad’ conspiracy. In the next hearing, the top court is likely to deal with that aspect of the case.
“We were expecting the Supreme Court would decide all three aspects of the issue. The annulment of her marriage and right to profess a religion of her choice are two major questions under threat after the Kerala High Court judgment. But instead of deliberating those aspects which contradict the fundamental rights of a citizen, the SC has unfortunately decided not to give its verdict or opinion on them,” said Navaid Hamid, President, All India Muslim Majlis-e Mushawarat, the umbrella body of Indian Muslim organisations.
If husband is not wife’s guardian, who is?
During the open court hearing on Monday, when the Chief Justice of India Dipak Misra had asked her if she wanted to continue her studies at state’s expense, Hadiya had replied: “I want to but not on state’s expenses when my husband can take care of me.”
When she was asked to name any guardian in Tamil Nadu, she had said her husband Shafin Jahan would be her guardian. But Justice DY Chandrachud rejected this suggestion saying husband cannot be guardian of wife. The judge’s views have surprised Hamid.
“It’s very strange that Hon’ble judges of the Supreme Court have questioned the guardianship of married women. If the husband is not the guardian of wife then who would be? In Indian society, it has always been regarded and considered that before marriage, the parents are guardian of children, particularly the daughters. It is the paramount duty of the parents, particularly father to discharge his responsibilities of guardianship to concerned daughters. But after marriage, every segment of Indian society considers that it is the paramount duty of a husband to act as a guardian of her wife,” Hamid told Caravan Daily.
Hamid termed the SC direction sending Hadiya to the Tamil Nadu college and her stay at the college hostel itself as transfer of her custody from her parents to that of an institution. As per the SC direction, she will be under police watch.
“What SC did is just transfer of her custody from parents to an institution. She is still not free. It is just transfer of confinement of an independent citizen. It also gives an impression that she is still not a free citizen. She has been given limited freedom of leaving her parents’ house to resume of her studies in confinement of an institution,” he said.
Dr Zafarul Islam Khan, former President of Mushawarat and Chairman of Delhi Minorities Commission, said: “I am baffled how the Hon’ble court refused to allow Hadiya to go with her husband and how the court ordered her to resume her studies. The issue at hand was her right to convert and to marry whomever she wanted as an adult but, curiously, this fundamental right was overlooked in this case.”
“The court by not allowing her to go with her husband and, instead, allowing her something she did not request, has not reinstated a fundamental right under the Indian constitution,” said Dr Khan.
Not only Muslim leaders, human rights lawyer and activists have also raised similar point.
“Amazing that the SC did not set the brave 25-year-old Hadiya free to live with whoever & wherever, & had appointed college Dean as her guardian!”, tweeted Supreme Court lawyer Prashant Bhushan.
However, senior lawyer Indira Jaising, one of counsels for Jahan, said that her freedom was of immediate importance for Hadiya and she has got it, other two issues would be taken up in the next hearing. The SC has not yet set aside the Kerala High Court…what was of immediate importance was her liberty, which she wanted, her faith and her freedom, the legality of the Kerala high court order will be argued in January, said Indira who has served as Additional Solicitor General of India. She also clarified that the college dean is not her guardian.
Hats off to Hadiya
Several people have lauded Hadiya for sticking to her stand about conversion and marriage all through the long difficult phase of her life.
“I appreciate her bravery and courage that she remained with her stand. Really, Islam is related to heart, nothing can be forced. If one accepts it under pressure, he/she cannot remain with it much longer. Hadiya endured all the difficulties all these months, she must have been put under pressure also and mentally harassed to change her opinion, yet no change in her stand shows her true and strong faith in Islam. She got strength by reading, understanding and believing Islam from heart,” said Mohammad Salim Engineer, Secretary General, Jamaat-e-Islami Hind.
Prashant Bhushan tweeted: “Hats off to Hadia for holding out under such immense pressure & saying clearly that she converted freely & wants to be with husband.”
Kavita Krishnan, Secretary, All India Progressive Women’s Association (AIPWA), commented: “From day one, Hadiya had been very clear about the fact that her conversion and marriage were both consensual. She was kept in custody precisely to try to suppress her own voice and intent and pressurize her to give up. Her courage in sticking to her stand must be lauded, it is a blow to the patriarchal and communal ‘love jihad’ discourse that the Kerala HC had unfortunately endorsed and perpetuated.
‘Love Jihad’ Propaganda & ISIS
Many say that Hadiya’s bold statement about her conversion and marriage has punctured the balloon of ‘love jihad’ propaganda.
Dr. Zafarul Islam Khan said: “Hadiya’s statement and assertion that she converted to Islam of her free will and that she wants to go with her husband has deflated the case against her and exposed all the Hindutva fallacies about Love Jihad, indoctrination and the bogus ISIS claim.”
“This claim is bogus and there is no proof of Love Jihad. It is a creation of the fertile minds of the votaries of Hindutva. Our Union home minister and other agencies have said a number of times that ISIS does not exist in India, that it has not been succeeded to make inroads into the Indian Muslim community; yet such baseless claims are repeated by agencies and media and our youth continue to be arrested in the name of ISIS,” said Dr. Khan, Chairman, Delhi Minorities Commission.
Salim Engineer said: “The environment created in the name of Love Jihad is fake environment. The governments’ reports earlier said there is no such thing like that. Govt has said that Indian Muslim youths have no connection with terrorist groups like ISIS. There is no radicalization in an organized form. Hadiya’s statement is very bold and hit the love jihad propaganda very hard.”
“What is more disturbing is that freedom of faith and freedom to choose faith of one’s choice ensured by the Constitution of India are now being suppressed. Particularly when one chooses Islam or Christianity, hue and cry is made that there is forced conversion. Going one step ahead, such conversions are now being linked to terrorism. On the other hand, some outfits are trying to convert people into Hindu religion, but no question is being raised,” said Salim.
He said that all the hate campaign and propaganda of ‘Love Jihad’ are politically motivated.
“This all is for political benefits. This appears to be preparation for the 2019 parliamentary election. By communalising and polarising the atmosphere, the real issues of the people like development, employment, inflation and promises made to people are being pushed back. As the government has failed on all these issues, so this cover-up. This is not good for our country as it is tarnishing the image of our country in the world,” he said.