THE CRITICAL ISSUE. Papa likes to preach

A history that was relatively unknown until recently was that of the widespread abduction and rape of women during the Partition of India. The numbers were staggering: nearly one lakh people suffered this fate as people fled, and attacks on caravans and trains became common. Women, among the most vulnerable, became the booty on which men fought their battles and rape the weapon with which these battles were fought.

An aspects that sets this history apart from other similar histories elsewhere in the world, was the role of the State.

In India, concerned at the reports filed by families, the State stepped in to set up search committees to seek out abducted women, and bring them back to their families. Sometimes, if the women protested and resisted being ‘rescued’, the State brought them back coercively because, in its eyes, the women did not know their own minds and had to be ‘protected’ and have decisions taken on their behalf.

I was reminded powerfully of this history recently when reading the stories of two women, Stanzin (who later became Shifah) and Hadiya (earlier Akhila) — the first a Ladakhi Buddhist-turned-Muslim; the second a Kerala Hindu-turned-Muslim.

In Ladakh, Stanzin’s marriage to a Muslim, long after her conversion to Islam, was seen by self-styled ‘community’ groups as betrayal, a misguided step, and they demanded her ‘return’ to the fold. That she could have decided to convert and marry independently and with agency, was not a thought that could be entertained despite the fact that she is 29.

Hadiya is younger by five years. At 24 in our country, hundreds of thousands of women are married and are mothers.

For the High Court (HC) in Kerala, however, the fact that Hadiya is an adult, well above the age of consent, did not count.

The judges first dismissed her marriage to a Muslim man because, as they said, “marriage is the most important decision” in a woman’s life and could only be taken “with the active involvement of her parents”. And they also dismissed it because the marriage took place during a court case filed by Hadiya’s father, who felt she had been lured by Islamists and was likely to be taken away to join an Islamic fundamentalist organisation.

Hadiya married while the case was underway, and did not inform the court of her marriage. The court wasn’t pleased when the news came to light. It annulled her marriage, and made her return to her parental home, where, for nearly two years, she is apparently under lock and key.

There are reports that she is being subjected to violence and there are reports from her father about how happy the family is to have her back. It’s difficult to test the veracity of these claims.

But did the court ask itself if it had the right to annul the marriage of two consenting adults? Can courts take such a step on the mere suspicion that the two may go off and join a fundamentalist organisation?

The Supreme Court (SC) went a step further and asked the National Investigative Agency to investigate the marriage. How could this, by any stretch of imagination, be seen as a legitimate step?

Perhaps this is why, a few days ago, the SC rethought its decision and asked the Kerala HC the question it should have asked all along: how could they do this?

Shifah and Hadiya are only two women, and while their stories have something in common, they are also very different. But at one point they become similar to the stories of millions of women across India, and that is in what they reveal about how the State of India infantilises one half of its citizens. In its eyes, women are not rights-bearing individuals. Instead, they’re weak, incapable of making independent decisions and need to be at the receiving end of protection and patriarchy. The post-Partition State called such women its “permanent liabilities”.

In Hadiya’s case, the fault does not lie with the State alone. Even the political party in power, the CPM, has, for its own reasons, not opposed her incarceration. Patriarchy makes strange bedfellows.

So here’s a question: suppose the State was suspicious of a man who married a woman of a different religion after converting to her religion. Suppose that woman belonged to a right-wing organisation. Suppose that right-wing organisation had started using women to recruit people for their operations. Suppose that man were 24 years old and his parents had reported him missing and had filed a habeas corpus petition.

Would the courts send him back to his parents and allow them to lock him up?

Urvashi Butalia is an editor, publisher and director of Zubaan

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