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Opinion: Love Jihad, Islamophobia or just love?

Hadiya has been in the headlines after she became a Muslim following her marriage to Shafin Jahan. Photograph: (Zee News Network)

Tirunelveli, Tamil Nadu, India Dec 08, 2017, 07.17 AM (IST) Dr Debarati Halder

The last week of November saw lots of emotions, shocks and surprises in the Supreme Court of India and among the news media and social media for a 24-year-old woman named Akhila Ashokan @ Hadiya. Hadiya is a budding Homeopath doctor, whom the Supreme Court had ‘helped’ to get back to Salem, Tamil Nadu for completing her course.

The question is, why a Hindu adult woman who converted into Islam attracted so much attention from researchers, lawyers, social scientists and media? Is it because she first embraced Islam (allegedly) for her own interest in the religion, then did a ‘love marriage’ to a Muslim amidst ongoing court case for Habious – corpus which was filed by her parents, which was later annulled by the Kerala High Court within a few weeks of the marriage? Or because of the ‘Islamphobia’? or because of the Supreme Court’s decision to free her from parent’s custody to go to the college and ‘meet whomever she wants to meet’?

Noticeably, her love affair (including marriage) was not the only love affair which was pulled to the court by the parents of adult women in India. Lata Singh, Babli Rani, Divya and  Kaushalya were some of the prominent adult women who did love marriages during the period from 2000 to 2016 and were dragged to the courts mostly against their wishes by the parents and the circumstances.

The failure of the High court to save an inter-caste love marriage between two adults sent a disastrous message to the society.
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While in Lata and Babli’s case, the court respected the right to choose their husbands according to their own choice, in Divya’s case, the court failed to reunite the couple. Court had put emphasis on the allegation of ‘brainwashing’ of Divya by her ‘lover’ turned husband. Reluctant Divya returned to her mother, and the very next day the news media reported about the death of Ilavarasan, her husband. Reportedly, he committed suicide.

The failure of the High court to save an inter-caste love marriage between two adults sent a disastrous message to the society which witnessed the gruesome murder of V. Shankar, a young Engineering graduate in broad daylight. He was murdered because he married Kaushalya, whose parents were vehemently against inter-caste love marriages.

In Hadiya’s case, the Kerala High court annulled the love marriage and questioned her intention to embrace Islam. Supreme Court, however, did not touch the issue of annulment of marriage but relieved her from the designation of ‘detenu’. She was no more made ‘bound to be in her parent’s custody’ only.

In my earlier research*, I had observed that “In Indian value system, love marriages against the wish of the family members or the elders of the community or society are considered an extreme form of revolt against the established family/ community or social norms. The social mindset has been so set also because of the historical past in India where local invaders from different tribes as well as non-Hindus including Muslims and Christians had from time to time invaded cities and destroyed the socio-economic and cultural structure of the existing societies.

The fear of sexual exploitation of unmarried young girls by foreign settlers, including Muslim and other colonial rulers was one of the key factors to restrict marriages within the sect.
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The fear of sexual exploitation of unmarried young girls by foreign settlers, including Muslim and other colonial rulers and grabbing of the property in the name of forceful dominance, was one of the key factors for many Indian societies from different geo-locations to restrict marriages within the sect.”

While this can be said to be the base of the mindset behind dragging the married daughters to the court to give a judicial stamp over the opinion of the parents, in my opinion, the courts should start approaching the inter-caste and inter-religious love marriages from Therapeutic Jurisprudential perspectives. The modern holistic concept of Therapeutic jurisprudence (TJ) was developed by Professors David Wexler and Bruce Winnick in 1980’s. This jurisprudence speaks about law’s healing power. It gives much emphasis on the mental well being of people and law and its agents’ role in the same. TJ practitioners and researchers explain that the judges, lawyers, police, social workers, including restorative justice practitioners are the agents of the law.

As may be seen in Hadiya’s case, while Kerala High court showed its concern for conversion to  radicalisation, the senior lawyers in Supreme Court reportedly requested the Supreme Court to understand that Hadiya is not a subject of POCSO Act, neither that of juvenile justice care and protection of children Act (which has extended its scope to cover juvenile offenders who may fall within the delicate age group of above 18 and under 21) and she may be matured enough to understand the consequences of her commitments.

As per news media report, Kerala has observed a sudden growth in radicalisation of terror organisations. Hence, the High Court very naturally turned its concern towards ‘why’ and ‘how’  the conversion took place. But the judicial process and dealing with the woman in question by the judges, the lawyers and the police probably made her lose confidence in law’s welfare power.

It is the communication between the judges and the woman which was not therapeutic as per therapeutic jurisprudential ideology.
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One particular portion of Kerala High Court attracts my attention here: Akhila @Hadiya was prohibited from using mobile phones while she was ‘ordered’ to stay at a certain hostel and only parents were allowed to meet her. Maybe the High Court felt that through the Internet and digital communication technology she may be influenced or radicalised to have a deeper belief in destructive, misleading concepts. But then, look at the consequence: clearly, she got married in spite of the best efforts of the court and the parents.  

What failed here? In my opinion, it is the communication between the judges and the woman which was not therapeutic as per therapeutic jurisprudential ideology. The latter part of the judgement rather showed the anger and frustration of the court over the woman’s decision to marry in haste while the case was ongoing. Now, can the court stop an adult individual to get married to a person she has chosen? Probably not.

The court can at the most counsel the individual to be careful with her decision. Again, there is a difference between stopping an adult individual to get married and annulling a marriage due to a technical lacuna in the execution of the marriage.

Therapeutic jurisprudential approach whereby the court has considered the aspects of freedom of speech acquire information and right to privacy of the woman for her mental wellbeing.
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Kerala High Court did not do the former. The Supreme Court did not look into the later. However, the Supreme Court in its interim order freed her from the ‘preventive’ custody of her parents; ‘preventive’ because she is now allowed to meet anyone and talk to anyone while completing her course in the college. This indeed is a therapeutic jurisprudential approach, whereby, the court has considered the aspects of freedom of speech acquire and right to privacy of the woman for her mental wellbeing.

However, the annulment of marriage would be a subject for Supreme Court after the consideration of NIA report. As such, Supreme Court still has avenues open for counselling Hadiya to take a matured decision in her life. Hadiya would not be legally punished for choosing a wrong man if in case the NIA report of her estranged husband indicates him as a threat to the security of the nation. But she would have undergone enough mental traumas for her choices in life because of family pressure, societal pressure and the wide media coverage which termed the whole episode as ‘love jihad'. The court may, therefore, turn its concern towards Hadiya as a victim of circumstances and not exclusively as that of ‘love jihad’.

We know that love is blind. We also know that forceful prevention of adults from falling into emotional commitments may have disastrous consequences, especially in this Internet age. She can be prevented from marrying and living forever with one Muslim man who may have the connection with banned organisations, but she may not be prevented from getting connected with groups of religious fanatics who may try to take revenge by influencing her broken heart. The court, therefore, should not neglect her as ‘leftover’ party after deciding over the issue of annulment of the marriage.

* Titled “Love Marriages, Inter-Caste Violence, and Therapeutic Jurisprudential Approach of the Courts in India” (co-authored with professor K. Jaishankar, published in Halder D., & Jaishankar K. (Eds.) (2017). "Therapeutic Jurisprudence and Overcoming Violence against Women". Hershey, PA, USA: IGI Global. ISBN: 978-1-5225-2472-4.)

(Disclaimer: The author writes here in a personal capacity).

Dr Debarati Halder

Dr Debarati Halder is the honorary Managing Director of Centre for Cyber Victim Counselling. She is professor of law at Unitedworld School of Law, Gandhinagar, Gujarat.

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