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If Hadiya Had Been a Man

Public discourse has consistently skirted around the core issues of gender equality and justice.


From Shah Bano and Roop Kanwar in the 1980s to Hadiya three decades later, some things never seem to change: the public debate about these women’s private lives is less about them as individuals and their rights as citizens, and more about their families and communities, about religion and politics, tradition and culture.

In 1985, an elderly, indigent, deserted and later divorced woman’s modest quest for a paltry amount as maintenance from her lawyer husband was turned into a political hot potato concerning religious freedom, identity and jurisprudence. In 1987, the gruesome death of an 18-year-old on the funeral pyre of her husband of just seven months was seized upon by her community as an opportunity to assert political power on the back of a long outlawed practice. And now in 2017, with Hadiya, a young but undeniably adult woman’s constitutionally guaranteed freedom of conscience and her right to choose a life partner have become entangled in politically charged anxieties about religious radicalism, terrorism and national security. At the heart of each of these instances is the question of women’s status and rights as citizens. But the public discourse skirts around the core issues of gender equality and justice.

In Hadiya’s case, the reluctance, if not refusal, to recognise gender as a central concern was clearly demonstrated during the hearing in the Supreme Court on 27 November. In October, the three-member bench had ordered that Hadiya be produced in court so that they could ascertain whether or not her conversion to Islam and subsequent marriage to Shafin Jahan were of her own volition. They were then evidently convinced that it was imperative to hear directly from Hadiya about her choices and wishes. Yet a month later, after she was brought before them, the justices appeared to dither over if and when to listen to her, allowing a prolonged debate on whether or not she should be allowed to speak for herself. When senior advocate and former Additional Solicitor General Indira Jaising finally asked in exasperation whether the bench would have hesitated so much if Hadiya had been a man rather than a woman, the judges were clearly annoyed, with the chief justice actually asking, “How did the gender issue come in here?”

How can gender not come into a case in which the high court declared that “a girl aged 24 is weak and vulnerable, capable of being exploited in many ways,” that it was not safe to let her be free to decide what she wants in life because she is a “gullible person,” and that “as per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married?” How can gender not come into a case that has become a cause célèbre in the campaign against so-called “love jihad,” launched by organisations belonging to the Sangh Parivar, which is predicated on women having no minds of their own, being nothing more than sitting ducks for being lured into marriage for the sole purpose of religious conversion? The fact is, of course, that the question­able term has no relevance in Hadiya’s case because she publicly expressed her desire to change her religion nearly a year before she married Jahan and received a formal certificate of conversion a month before they met online through a Muslim matrimony website.

How can gender not come into a case in which, despite clearly and consistently stating her thoughts, feelings and wishes multiple times over nearly two years—in court and outside whenever she got the opportunity—she is still not being seen and treated as an adult who knows what she wants? It is remarkable that despite being subjected to more or less solitary confinement for many months, guarded by police, isolated from everyone except close family and, according to her, subjected to psychological harassment, she is still so calm, composed, and crystal clear about what she wants: the freedom to live her own life as she sees fit.

HHow can gender not come into a case in which, despite her unequivocal, expressed desire for freedom and release from the captivity experienced over the past several months, she was subjected to a paternalistic sermon about women’s individuality, independence and dignity? She was then told that she would be granted only partial freedom, to complete the internship required for her to obtain her degree while living in the hostel run by the college, guided by hostel rules./p>

Although the discussion in court about the college dean being designated her guardian is not reflected in the final order, it is clear from his statements, and hers, that he will determine what she can do, where she can go, who she can meet and under what conditions. However, Hadiya’s father is clearly not happy about even the highly restricted freedom she has been granted and has threatened to go to court again. There is, of course, much more to Hadiya’s case than gender, including the influence of communal politics, Islamophobia, and the terrorism bogey on public as well as judicial perceptions of it. Yet it is important not to lose sight of the fact that Hadiya’s unfortunate predicament has very much to do with her being a woman.

Updated On : 11th Dec, 2017


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