Posted by Shreeti Shubham
Sunita* was a 25 years old graduate who knew Rizwan* for more than 12 years; though they may belong to different religions love know no barriers. She decided to tie the nuptial knot through court marriage aided by the Special Marriage Act 1954 provisions: the act which allows two people of different faiths to choose to marry without conversion. In such a wedding, a month’s notice is required to be put up in the public domain for any opposition to the relationship.
However, her parents opposed their union because he was a Muslim. To break her courage, they locked her up in a room for more than two months. In these circumstances, she found it difficult to get married under the SMA. She ran away from home, converted to Islam, and married Rizwan.
The marriage had come with harassment and objection, not only from her family but the police and judiciary too. The police revealed their religious and class bias when it began to harass Sunita’s in-laws even before her parents had filed the FIR against her husband and his family. The Court told her, “She had been in the custody of the accused (her husband) and was, therefore, not in any mental condition to record her statement.” This implied the court’s denial of a young woman’s right as an adult to choose whom she wanted to marry, and it exposed the lower court’s apparent bias by refusing to allow her this freedom.
Renu Mishra, Executive Director of Association for Advocacy & Legal Initiative (AALI) said, “Many times, the judiciary asks this type of question, ‘what does it mean to marry on your own? This is unfortunate; the people working in this community & system are full of the patriarchal mindset, which restricts women’s right to choose.”
The District Judge later released Sunita and her husband. “Experience taught the activists that the higher courts, rather than the lower courts, are more inclined to protecting the individual’s right to choice in marriage.” added Renu Mishra. In India, women’s right to choose has faced major repercussions based in this endogamous ideology entrenched throughout the society and system. Those challenges get widened in current times of hate if her choice of partner is a man of different religion and/or caste, such as Muslims, for instance. Women are tortured and even killed by their kin, thus being denied their rights in the name of the family’s honour.
Honour v/s Choice
‘Honour killings’ are nothing but murders committed by family members who justify their action by proclaiming that a family member (most probably a woman) has brought disgrace upon them. The most recent statistics available to us of the last three years showed that more than 300 people were killed in the name of protecting the honour of the family, of which 71 such murders happened in 2016.
However, as per the United Nations Population Fund, nearly 5,000 women are being killed annually throughout the world in the name of ‘honour’. Almost half of all honour killings occurred in India and Pakistan. However, honour killings are widely deduced to be underreported, and activists say there are thousands of mysterious deaths. In countries like Jordan, honour killings are not even legally punishable. The Jordanian Penal Code exempts the assassins from punishment who kill female relatives or found ‘guilty’ of committing adultery. Even in India, there are no separate laws to punish those found guilty of murders. The existing penalties are usually under the various sections of the Indian Penal Code.
‘Honour killing’ is a clear violation of women’s fundamental right to life and right to choice- right to freely choose when, with whom, and whether or not to enter into, remain in, or exit an intimate or marital relationship. These rights are codified under national and international provisions, and even many judgments have been passed by the Supreme Court & High Courts of India to safeguard those rights.
The Indian government is a member of several international human rights treaties that secures the right to choice and eradicate all forms of discrimination against women. Such as the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) states in article 16 (a) & (b) that the state should take all measures to protect the rights of women to freely choose a spouse and to enter into marriage only with their free and full consent. Article 5 (iv) of the Convention on the Elimination of all forms of Racial Discrimination (CERD) also makes the national government responsible for strengthening the right to choice of an individual.
The Constitution of India protects the right to choose under Article 14 (equality before the law), Article 15 (state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them) and Article 21 (right to life and personal liberty). Article 25 of the Constitution guarantees freedom of religion and freedom to profess/propagate one’s faith.
At the same time, the apex court has intervened many times to defend the rights of the couple. In 2006, in the Lata Singh v/s State of UP case, when a woman had faced violence from her Thakur brothers after marrying outside her caste, the Supreme Court had said, “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the boy or girl’s parents do not approve of such inter-caste or inter-religious marriage, the maximum they can do is that they can cut off social relations with the son or the daughter. But they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.”
At that time, the Supreme Court had directed the administration/police authorities to ensure inter-religious and interfaith couples’ safety throughout the country and take action against those who harassed such couples.
In 2018, in the case of Hadiya, a Hindu woman from Kerala who converted to Islam to marry Shafin Jahan, the apex court questioned the Kerala high court order of annulling her marriage sending Hadiya back to her parents. The top court has restored her autonomy to choose and stated that when two consenting adults say they married at will, “We cannot say this marriage is not in her best interest, and we cannot decide whether it is the right choice. We cannot annul a marriage on the grounds because the person she married is not the right person.”
Even in a recent judgment, the Supreme Court asserted “Society must learn to accept inter-caste and interfaith couples.” The court also stated, “that once two adults choose to be with each other and have a consensual relationship, they could not be made accused in a criminal case only on account of their parents’ refusal to accept their relationship.” Despite all these interventions, society is yet far from accepting women’s freedom to choose.
In India, as per the Centre for the Study of Developing Societies (CSDS), over 84% of marriages are arranged by parents. While fixing alliances, families rarely look outside their preferred caste and religion. A study by the Indian Human Development Survey noted that only 5% of marriages are inter-caste, whereas interfaith marriages are rarer. Only 2.2% of all married women between the age of 15-49 had married outside their religion.
The data is enough to present the failure of enacting laws & policies and the Special Marriage Act 1954, whose primary purpose was to provide space for youths who wanted to escape from personal customs and choose to love beyond the boundaries of religion and caste. The required notice period in SMA 1954 in which anyone can object to a couple’s marriage is a violation of privacy and gives dissenting parents and other vigilante groups a chance to attack the couples. Women’s families often accuse the men and their families of abduction and forced marriages or claim the woman is of ‘unsound mind’. These can delay legal proceedings, thus denying the women her rights.
Renu Mishra said, “A girl who can elect the Prime Minister, MP, MLA of a country after 18, can’t choose her partner? This is a country where women are told after rape that this is not rape. You must have known that guy, and this is your consensual sex. But if a women chooses her partner by herself, then they are told that they are not in a sound mind; they have been enticed. Why don’t you simply trust a woman’s statement? When will you start understanding it?.“
The women’s bodies are the only source to maintain the status quo and the power hierarchy in society. In the name of preserving this “purity” or status quo, they are being dehumanised every day. 90% of women face rejections in arranged marriage set-ups due to their looks which further impact their self-esteem and pressure them to take extreme measures to look ‘beautiful’. And the society we live in, will have no qualms accepting this dehumanisation, but will readily question a women’s right to choose.
Shreeti Shubham is an Ideosync-UNESCO Information Fellow, As a Fellow, I’m focusing on intersectional feminism & digital rights. As part of the fellowship, I worked on the project “Democratic Love” which’s about Women’s right to choose, Special Marriage Act & Interfaith marriages. I’ve done my Master in Media & Governance from Jamia Millia Islamia University.
(This is made as part of the Ideosync- UNESCO Information Fellowship, 2020 Special Cohort on Intersectional Feminism and Human Rights)
Names in the article have been changed for safety reasons.
Featured Image Source: Shreya Tingal/Feminism In India