Wife Not Husband’s Chattel: SC in Hadiya case – Whose Chattel Hadiya Really Is Then?

25 year old Hadiya’s story is on everybody’s coffee table these days in India. An entire nation is threatened by an adult woman’s right to choose her religion and husband.

Last Monday, after eleven months of house arrest under her father’s control, Hadiya (formerly Akhila) for the first time appeared before the testified before a three member bench of Supreme Court of India, that she wanted to complete her studies and wanted her husband to be her Guardian. In reply, Justice DY Chandrachud quite patronizingly said, “No husband can be the guardian of his wife…Please explain to her (Hadiya), wife is not chattel…I think she needs to understand that.”

Adult female citizens of India would like to know from the Hon’ble Court, “Whose chattel are we then?” Justice Chandrachud perhaps forgot that Section 497 of the Indian Penal Code, which deals with the crime of “Adultery”, indeed treats married women as Husband’s chattel. As per this section only a husband has the right to bring a case of adultery against another man who had sex with his wife. The wife in this case is not incriminated and her consent is also immaterial.

Indian law treats the wife’s body and sexuality as her husband’s property. The husband can even have sex with her against her will and still not be guilty of rape, but another man, her paramour, will be guilty of the crime of adultery even though she may have had consensual sex with him. So, what else is a married woman if not the chattel of her husband?

Hadiya’s ordeal is a testimony to the fact that whether married or unmarried, women in India is always treated as chattel of somebody or the other, never a free citizen with equal rights. The father or husband or judiciary or religious community or the nation. As it turns out from Hadiya’s story, everybody is trying to claim her as their chattel which they are hell bent to protect from “invaders”. Never mind that the adult woman is screaming through her lungs that all she wants is freedom. Woman with agency don’t need saving. Only Chattels need saving.

Indian Express headlines ran this morning in bold red letters, “Bench interacts with woman who converted to marry.” The headline was incorrect. Not misleading or ambiguous, it was just plain incorrect. I promptly tweeted that but IE did not bother to respond or rectify.

A quick recap of the Hadiya story is that she was studying in a Homeopathic college. During her college days she started following Islam and decided to embrace the faith. Her father disapproved but she converted anyway and left home. Her father approached Court with multiple petitions, availing all legal recourses, to forcefully bring her back under his control and end her marriage.

Much transpired through a period of approximately two years, and then on 19th December 2016, Hadiya had a hurried, secretive self-arranged marriage with Shafin Jahan. Thus her conversion was at least two years before the marriage. Reportedly Hadiya’s sudden secretive marriage made the Court very upset and suspicious of the people behind the turn of events in her life. This explains the very adverse decision in May 2017 in which the Kerala High Court declared Hadiya and Shafin Jahan’s marriage invalid and ordered her to be placed under her father’s guardianship. The Court made several patriarchal regressive statements in the judgement, notably,

“A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways

“…the petitioner…given custody of Akhila. She shall be cared for, permitted to complete her house surgeon course…”

“Her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents.” (emphasis added)

The appalling decision was challenged in Supreme Court by her husband Shafin Jahan on grounds that it is violative of Hadiya’s fundamental rights. One would have imagined that SC would right away declare High Court’s order erroneous and give Hadiya her rights but that didn’t happen. SC ordered National Investigative Agency (NIA) to investigate into Hadiya’s life, love and marriage and figure out whether Shafin Jahan’s love was true or fake (If only such an investigative agency was there in the world which could ever what love is “true love”).

While NIA got time to investigate, Hadiya continued to live in her father’s custody under house arrest. She was not allowed to meet media or use cell phone or have internet access. Young women activists who went to meet her were refused entry and were threatened with police violence, even as Hadiya shouted through the window, “Please save me from here, I am being beaten up”. The nation outraged, everybody wondered how can an adult woman be kept in house arrest, on what grounds? There was no answer but further videos emerged in which Hadiya said her life was in danger, her father will kill her. The National Commission of Woman was allowed to meet her but few days later Kerala State Women’s Commission Chairperson M C Josephine on was denied permission to meet. “Her father informed that the family is looking after their daughter well and there is no need for such a visit”, the chairperson said. The nation watched helplessly in dismay wondering on what legal ground does the father of an adult woman get to decide whom she is allowed to meet, unless she is being treated as his “Chattel”.

At least two entities have assumed massive stakes in Hadiya’s life (1) Her father (2) The government.

The central government led by BJP is at its core an identity based nationalist party. Nationalism is based upon the idea of inclusivity and exclusivity, personal liberties and citizenship rights are mitigated based upon the question ‘who legitimately belongs to the chosen national identity’. Nationalism treats women’s bodies as the site where the chosen national identity is produced and reproduced. Thus the Indian government is trying to lay such a massive claim on Hadiya and all such women’s lives, who are reportedly getting married to Muslim men, taking up their religion and producing Muslim citizens, the identity that doesn’t suit the Hindu nationalist imagination.

The BJP government is putting all its might behind this case to establish a vague concept “Love Jihad” as a legitimate legal problem. So far, “love jihad” was a silly bigoted idea peddled by fringe elements but now with NIA presenting farfetched speculations like, “psychological kidnapping”, “Stockholm Syndrome”, “hypnosis” and “indoctrination” in front of the Apex Court, love jihad have successfully entered the public conscience of the whole nation. Irrespective of the outcome of this case, the larger goal of instilling fear in young Hindu woman’s minds regarding the ordeal they are likely to face should they chose to marry outside their religion has been achieved.

Hadiya converted to Islam. This is not against law. She married a Muslim man, this is not against law. She has never been clinically diagnosed as mentally unstable. NIA keeps claiming they have reasons to believe there are terrorism links to cases of inter-faith marriages yet nothing is on record, no FIR has been filed, nobody is arrested. Usually mere suspicions cannot be legitimate basis to take away anybody’s fundamental rights yet a harrowing interference in Hadiya’s life is being done based upon speculations. One is compelled to ask, is it because she is a woman? Is the woman nation’s chattel that she must be protected against her own will?

The Apex Court heard Hadiya the woman whose right have been taken away without any legal basis for the first time after eleven months of illegal detention. After the brief interaction during which Justice Chandrachud very patronizingly lectured, “Please explain to her (Hadiya), wife is not chattel…I think she needs to understand that.” the Court went ahead and placed her under the guardianship of her college Dean.

Why does a 25 year old woman need a guardian unless she is still being treated as somebody’s Chattel? Justice Chandrachud may kindly tells us whose chattel Hadiya really is because as it seems, she can never be allowed to be free.


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