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Islam, Women and Feminism ( 19 Jun 2012, NewAgeIslam.Com)

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Of Law, Marriage and Despairing Feminists


By Flavia Agnes

18 June 2012

The recent Delhi HC judgment allowing a minor Muslim girl to marry her lover has caused much dissent. Flavia Agnes writes why a myopic perspective towards safeguarding a woman’s freedom won’t produce enduring results

A sense of doom and despair seems to be pervading among some women’s groups over the Delhi High Court judgment (Tahra Begum v State of Delhi Ravindra Bhat and S.P. Garg, JJ, 9th May, 2012 MANU-DE-2154-2012 ), which permitted a minor (almost 16-year-old) girl to marry the man of her choice rather than restore her to her parental authority. Some groups such as the Bharatiya Muslim Mahila Andolan, that have been campaigning for codification of Muslim law, have used this occasion to campaign for 18 as the minimum age of marriage for Muslim girls (and 21 for boys), with the underlying presumption that all underage marriages must be declared as void.

Before we come up with a knee-jerk response to the hype created by the media and bite the bait, we need to have greater clarity on whose side are we (the feminists) batting in this confrontation between parental authority or the active agency expressed by a young, teenage girl. Also I wish to raise a connecting question—if the Muslim law was codified and minimum age for marriage was stipulated, as has been done under the Hindu Marriage Act, would the High Court have responded differently? Would the judges have sent the girl back to her parental custody? And the last question—could that have been construed as a “progressive ruling” by us claiming to be “feminists”?

Rather than speculating, it would be more prudent to make out my case by citing judgments of various High Courts pronounced in the last decade. The facts of these cases were similar to the one that is currently being condemned: A young girl elopes with a boy of her choice. The girl’s parents file a case of rape / kidnapping or habeas corpus against the boy and get him arrested merely on the basis that the girl was below the “age of consent” or “age of marriage” as the case may be. When the girl is produced in court, she defies parental authority and deposes that she has voluntarily eloped with the boy and has married him. Upholding her wishes, the courts permit the girl to accompany her husband / lover, rather than restore her custody back to her parents. The only difference—the parties were Hindus and not Muslims as in the present case. Here is a glimpse of some of these rulings:

In Jiten Bouri vs State of West Bengal, [II (2003) DMC 774] Cal, the Calcutta High Court, while permitting the minor girl to join her husband, declared as follows: “Although the girl has not attained majority yet she has reached age of discretion to understand her own welfare which is a paramount consideration for grant of her custody. She may not have attained marriageable age as per the provision of S.5 (3) of the Hindu Marriage Act but marriage in contravention of age can neither be void nor voidable … The girl has insisted that she wants to join her husband and does not wish to return to her father’s place.”

In Makemalla Sailoo vs Superintendent of Police Nalgonda District , [II (2006) DMC 4 AP], the Andhra Pradesh High Court held that although child marriage is an offence under the Child Marriage Restraint Act, such marriages are not void as per the provisions of both, the Child Marriage Restraint Act as well as the Hindu Marriage Act.

In Manish Singh vs State, NCT Delh [I (2006) DMC 1], the Delhi High Court held that marriages solemnised in contravention of the age are not void. The court commented: “If a girl of around 17 years runs away from her parents' house to save herself from their onslaught and joins her lover or runs away with him, it is no offence either on the part of the girl or on the part of the boy”. The girl had deposed that she had married out of her own will and was desirous of living with her husband. The court ruled that once a girl or a boy attains the age of discretion and chooses a life partner, their marriage cannot be nullified on the ground of minority and that it is not an offence if a minor girl elopes and gets married against the wishes of her parents.

In Sunil Kumar vs State, NCT Delhi [I (2007) DMC 786] the Delhi High Court reaffirmed this position. The girl’s parents were adamant and were not amenable to any reconciliation and wished to sever all relationship with her. The girl was not willing to return to them. Hence she was permitted to live with her husband.

In Kokkula Suresh vs. State of Andhra Pradesh [I (2009) DMC 646], the High Court reaffirmed that the marriage of a minor girl below18 years is not a nullity under the Hindu Marriage Act and the father cannot claim her custody.

In Ashok Kumar vs State [I (2009) DMC 120], the Punjab and Haryana High Court commented that couples performing love marriage are chased by police and relatives, often accompanied by musclemen and cases of rape and abduction are registered against the boy. At times the couple faces the threat of being killed and such killings are termed as ‘honour killings’.

All these marriages were termed as “elopement marriages” and hence we need to examine this term, which is used for marriages contracted without the consent of the girl’s parents. At times, the girls are below the permissible age of marriage, and at other, they are projected as minors by their parents in order to invoke the state power by using the provisions of the Child Marriage Restraint Act (CMRA). The discussion on elopement marriages bring to the fore ways in which multiple social subordinations—caste, community, region, religion—intersect with patriarchy in order to hone in the sexual choices of defiant young women within established social mores. Women who exercise active agency to defy convention pose a threat to the established social order and hence are confined by reframing consent itself. In this discourse, “consent” assumes a different dimension and gets embedded in assumptions about rational choice and parental authority rather than choices made by women themselves.

Hence judgments such as the one discussed above as well as the judgment which is sought to be condemned, which restrain the police from forcing women back into parental custody or the protective custody of the state, serve as a benchmark for a liberal interpretation of constitutional safeguards of personal liberty and individual freedom.

It is indeed ironical that the provisions of the seemingly progressive CMRA come to the aid of parents to tame “defiant” young women prevent voluntary marriages and augment patriarchal power than to pose a challenge to it. When child marriages are performed by families and communities, the provisions of this statute are seldom invoked. Many a time a girl, who is restored to parental custody, is married off while is still a minor against her wishes. The patriarchal bastions are too strong and well fortified for a modernist feminist discourse to enter and change social mores through legal diktats. The only sphere in which these provisions come into play is during “elopement” marriages where patriarchal power colludes with the state power. They bring into sharp focus the vagaries of the term, “consent”. For the family and state authorities, lack of age becomes synonymous with lack of agency to express sexual desire and bodily pleasure.

While this is problematic, even more problematic is the way in which a certain kind of feminist discourse engages with notions of age, agency and consent when there is a rupture between these terms. This raises some discomforting challenges to the feminist movement.

First, is it possible to place “consent” on a superior plane when there is a disjuncture between “age” and “consent” invoking the notion of “agency” which gets operational during elopement marriages? Second, does the response of a conservative institution such as the judiciary tend to be more nuanced and pro-women than the feminist demand for declaring all such marriages as void when such marriages contravene the stipulation of age despite a visible display of consent and agency? And third, will invoking the Islamic notion of “age of discretion” rather than merely “age of majority” or “age of marriage” aid the defiant young women who challenge patriarchal authority, while exercising unconventional sexual choices?

When we examine the agency which a young girl expresses in an elopement marriage, the legal provision becomes a weapon to control sexuality and curb marriages of choice. Even though the criminal provisions regarding kidnapping and statutory rape appear to be protecting minor girls, these provisions are aimed at augmenting the patriarchal parental power over the minor girl. There are no exceptions in legal provisions on abduction and kidnapping that allow a minor to opt out of guardianship, or to leave her parental home on grounds of domestic violence, child sexual abuse or abuse of parental authority. The use (and abuse) of police power, at the instance of parents with regard to marriages of choice, works in direct contrast to women’s autonomy, agency and free will.

At times, judges, with a concern for social justice, have resolved the issue by resorting to basic principles of human rights, in order to save the minor girls from the wrath of their parents and from institutionalisation in state-run protective homes. The only way they could do so was by upholding the validity of these marriages by bestowing on the minor girls an agency (by invoking the premise of ‘age of discretion’) and by distancing the notion of “age” from “consent” or “agency”.

On examining these judgments through the prism of women’s rights, could these judicial interventions in aid of minor girls be termed as “regressive” and the demand by women’s groups to declare these marriages as null and void termed “progressive”? Could the curbing of freedom of these minor girls to express their sexual choices by their natal families with the help of the state within a sexually repressive society be termed as a progressive intervention and a challenge to patriarchy? The recent legislation passed by the Parliament on Child Sexual Assault, raising the age of consent to sexual intercourse from 16 to 18 will further deteriorate the situation and render young girls (and boys) even more vulnerable to parental and state power when they express their sexuality and make unconventional sexual choices and result in even higher level of “moral policing” by the State.

Invoking the notion of “age of discretion” which the courts had done even while validating marriages of minor Hindu girls, who had eloped, did not evoke a similar controversy as is being done at present. Is the present controversy and media hype generated thus hinged upon the fact that the parties involved are Muslims? The groups condemning the judgment project as though the judge has erred in applying a concept of Islamic law to Muslims, although the same is all right when applying the concept to non-Muslims or to Hindus governed by a statute.

The extremely provocative way in which this judgment has been projected by the media, warrants that we do not respond in an expected knee-jerk manner and lend fuel to the age old right wing demand for the enforcement of a uniform civil code. At such moments, it is important for us to be clear on whose side we are batting.

Perhaps bringing Mathura back into this debate will help clear the muddy waters. Mathura, a young 16-year-old illiterate tribal girl, who had eloped, was brought to the police station on a complaint filed by her brother. After interrogation, she was raped by the policemen on duty. The controversial Supreme Court ruling which acquitted the policemen on the premise that she was a woman of lose moral character became the catalyst for the women’s movement in India in the late Seventies. For many of us, Mathura continues to be the touch stone for testing our feminist sensibilities. This helps me to make my point that we need to be sensitive to the multiple levels of vulnerabilities that teenage girls, who elope with their boyfriends or make other unconventional sexual choices, suffer as they negotiate multiple levels of marginalisation.

In another case concerning an elopement of a Muslim girl with a Hindu boy, Vivek Kumar @Sanju and Anjali @ Afsana vs the State (Crl.M.C.No. 3073-74/2006, decided on 23.02.2007) (as cited in Tahra Behum above), the Delhi High Court commented as follows:

“There is no law which prohibits a girl under 18 years from falling in love … Neither falling in love with somebody is an offence under IPC or any other penal law. Desiring to marry her love is also not an offence. However, this (to wait to marry till she is major) is possible only when the house of her parents where she is living has congenial atmosphere and she is allowed to live in peace in that house and wait for attaining age of majority. … (When the daughter confided in) her father that she was in love and wanted to marry Sanju, the response of the father created a fear in the mind of (the girl). Her father slapped her and told her that her action would malign the family and bring danger to the religion. He even threatened to kill her or marry her off to some rich person. When once such a threat is given to a girl around 17 years of age, who is in love, she has a right to protect her person and feelings against such onslaught of her relatives even if the onslaught is from her own parents. Right to life and liberty as guaranteed by the Constitution is equally available to minors. A father has no right to forcibly marry off his daughter, against her wishes. Neither has he the right to kill her because she intends to marry out of her religion. If a girl around 17 years of age runs away from her parents’ house to save herself from the onslaught of her father and joins her lover, it is no offence either on the part of the girl or on the part of the boy with whom she ran away and married.”

It is in this context, that the voice of the feminist movement must lend credence to the claims of the weak against the might of status quo-ist institutional authorities. The agency exercised by a young teenage girl and her acts of assertion against the diktats of patriarchy need the support of both the judiciary as well as human rights / feminists groups. The claims of feminist jurisprudence must essentially lie within this complex tapestry.

Flavia Agnes is a women’s rights lawyer based in Mumbai. She is the director of Majlis which provides legal advocacy and litigation support to women.