3 Kerala High Court Decisions On A Woman’s Right To Choose Her Husband

Posted: December 15, 2017

From taking a walk out at night to choosing your partners, the right of a woman to choice has often been questioned and put under surveillance, without regard for her autonomy. These 3 Kerala High Court decisions show that we still cannot take our autonomy for granted.

The reasons are numerous and we have all heard them. The world’s not safe, you are vulnerable, you don’t know what’s better for you, and the list goes on. They have called us weak, disallowing us to make our own decisions, be it the right ones or the wrong.

Yet again a woman has been put under examination for her choice of a life partner. Hadiya, a 24-year old medical student has come under scrutiny of the nation, its judiciary and media for her marriage (consensual) with a Muslim man and conversion to Islam. The Kerala High Court annulled her marriage and sent her back to the custody of her parents (where she was prevented from meeting outsiders) as it considered the marriage and conversion to not be ordinary and her not capable of taking an independent decision.

The case is now in front of the Supreme Court after her husband filed an appeal against the annulment of their marriage. The Court has directed her to be ‘taken’ to Salem to pursue her studies, freeing her from from her parents’ house. But the failure on the part of the Supreme Court to overrule the Kerala High Court’s judgment reasserts that a woman has only crippled liberty, which can be put under question by her parents, her husband, the court, the media, or the government any time of the day. How long is Hadiya going to be treated like a chattel whose personal choices will be subjected to the court’s and everybody else’s decisions?

Kerala High Court and woman’s consent

Hadiya’s case is not the first one that has come under supervision of the Kerala High Court for her choice of a partner. The Kerala High Court, has on several occasions ruled on the matter. Let’s have a brief look at some of the cases.

In Dr.Lal Parameswar vs Ullas.N.N, the court dismissed the writ petition for habeas corpus, filed by a male lover alleging illegal detention of his female partner by her father. The petitioner and the detenu in the above case were both doctors by profession and decided to get married. The father who didn’t approve of their affair, detained her. Consequently, a petition was filed by the lover.

The woman was produced before the court where she confirmed her love affair and said that it was her decision to get married to the petitioner. The court which didn’t find it reason enough to let her go, observed that “like in any other sphere of life, there has been a change in the social and moral values. Ours is a society which has recognized freedom to every citizen. But then, these changes that we proudly talk about, and the liberties that are guaranteed to our citizens, cannot be stretched beyond limits nor can such freedom be made weapons to destroy our fundamental values or social establishments like families, which, undoubtedly, concede authority on parents to advise and guide their children. We cannot accept as a general principle that the parents are in all circumstances, bound to concede absolute decisional autonomy to their children, even if they have attained majority and remain helpless even in situations where their wards have taken wrong and immature decisions, which will be disastrous not only to the wards themselves but also to the family itself.”

The following judgement takes us back to times where the patriarch had unquestioned autonomy over the child, dismissing all efforts of progress in establishing the individual’s rights.

Though the above judgment of the High Court doesn’t endorse women’s right to free choice and appear regressive for independent women, the court on several occasions has advocated and upheld women’s rights in this democratic country.

In Rajmohan M.S vs State Of Kerala, the court was similarly posed with the question of decisional autonomy. In the following case, a Muslim woman and a Hindu man fell in love, got married in a temple and registered their marriage under the Special Marriage Act. The woman was then taken away by her parents forcibly from her new house.

The husband then filed a Habeas Corpus petition to free his wife from the illegal custody of her parents. The Court in this case, marvelously, held that “a person who has attained majority, is in the eye of law, a person and a citizen entitled to all rights and privileges under the Constitution. There can be no question of an adult major woman being kept in the “custody” of anyone else against her wishes, desire and volition.” The court further said that “Parental authority or matrimonial authority will not at any rate give right to such parent or husband to keep such woman under restraint, confinement or detention against her will. The parent may feel that he has the monopoly for taking correct decisions which concern his daughter, but that impression of a doting patriarchal parent cannot blindly be accepted and swallowed by a Court.”

In another, quite recent and similar case to Hadiya’s, Anees Hameed vs State Of Kerala, Sruthi Meledath fell in love with Anees Hameed, and eloped with him after her parents vehemently opposed her marrying him, and got married. Her father filed a complaint and the couple was produced separately before a Judicial First Class Magistrate to screen one from the other while recording their statements.

Sruthi, an adult, was handed over to her parents who lodged her in a Yoga Kendra in Ernakulam. After two months at the Yoga Kendra, when Sruthi was produced before the High Court, she narrated the torture inflicted on her during her stay at the Yoga Kendra, who were allegedly running the institution for ‘Ghar Wapsi’(coercing the inmates to come back to their original religion). Sruthi wept in the open court and stated that the inmates were slapped on their cheeks and kicked on their abdomen if they disobeyed the commands in the Yoga Kendra. She added that there were instances when a piece of cloth was inserted in her mouth tosilence her when she wailed disclosing her wish to go with Anees much to their chagrin.

The court in this case observed that, “We are appalled to notice the recent trend in this State to sensationalize every case of inter-religious marriage as either ‘Love Jihad’ or ‘Ghar Wapsi’ even if there was platonic love between the spouses before”. The court thus held that “Sruthi is a Post-graduate and matured and has discovered her life-partner in Anees and she cannot be detained against her wishes either at her parental home or in the Yoga Kendra. Sruthi is ordered to be set at liberty and it is for the couple to decide their future course of action without any interference from her parents or from any corner whatsoever which the police shall ensure.”

The court, in the end, magnificently, cautioned that “every case of inter-religious marriage shall not be portrayed on a religious canvass and create fissures in the communal harmony otherwise existing in the God’s Own Country – Kerala.”

God’s Own Country, Kerala has truly seen manifold cases of inter-religious marriages and ruled over autonomy of adult women to make a decision regarding their own, just like the entire country; and though courts have upheld women’ s rights of freedom and choice, that hasn’t always been the case.

In a country which recognizes equal rights for all, a woman’s rights have always been questioned, demeaning her to the position of a second-class citizen, who’s weak and incapable of independent thinking. Women, just like anybody else have the power to make their own decisions, their own mistakes, get their own lessons and live their own lives.

A day when a ‘superior’ authority doesn’t rule over our personal choices is what has to come ahead.

Image source: By നിരക്ഷരൻ (Own work) [CC BY 3.0], via Wikimedia Commons and By MohitSingh – Own work, CC BY 3.0, Link, for representational purposes only.

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