Vrinda Grover (advocate Supreme Court) comments on this:
Since last week I have received calls from feminists and secular activists, expressing serious concern at the recent judgment of the Delhi High Court, pronounced on 9th May 2012, titled " Mrs. Tahira Bgeum vs State of Delhi and Ors" .
Some papers reported the judgment with provocative titles stating - High Court upholds/ allows/ marriage of 15year old girl valid under Muslim law. The concern was therefore natural. It also inspired a Talking Point by Rajdeep Sardesai on " Should Personal laws by Uniform?"- starring 3 Muslims and BJP lady Meenakshi Lekhi - championing the cause of Uniform Civil Code and gender justice. I also read a statement of NFIW the next day criticising the judgment.
I am hurriedly scribbling a few facts and thoughts for purposes of collective thinking and debate, on the issues that emerge.
A few facts before we take positions and actions in response to the judgment. A copy of the judgment is attached.
What is the case about? What was the Court asked to decide? Whose rights does the judgment uphold?
This judgment passed by the Division Bench of the Delhi High Court was on a habeas corpus writ petition, filed by the mother Tahira Begum. Tahira Begum and her husband had filed a FIR that on 12th April 2011, Mehtab had kidnapped their daughter Shumaila and stolen Rs. 1.5 lakhs.
Shumaila appeared before the Court on 18th April 2012 and stated that she voluntarily went away with Mehtab and was married to him and living with him as his wife. Shumaila said that she did not wish to go back to her parents. Shumaila was sent to Nirmal Chhaya and produced before the Child Welfare Committee. CWC stated that Shumaila's age was was 15 years 10 months and some days. (Closer to 16years rather than 15 years). The judgment specifically in para 3 states- "The issue to be decided by this Court ...is whether Shumaila should be directed to return to her parental home". In my view the Court is NOT adjudicating on the valid age of marriage under Muslim law, in this case. The Court is confronted with a tricky situation and deals with it in a way that can best protect the rights of Shumaila.
The Court cites judgments of different High Courts on the position under Muslim law with regard to the right of the girl to marry without the consent of her parents after she attains puberty. The central thrust of the judgment as I read it is the that Mahomedan law allows a girl to marry WITHOUT The Consent of her parents after she attains puberty. Basing itself on this aspect of Mahomedan law the High Court does not grant the prayer of the parents and does not send Shumaila back into her parents home. All the judgments cited by the Court relate to the right of the girl to choose her partner.Further this judgment has not created new law on the age of marriage of Muslim girl. The Delhi High Court judgment does state, on the basis of already settled law that a Muslim girl who has attained puberty, i.e. 15years can marry and such a marriage would not be a void marriage.
Discussing the Prohibition of Child Marriage Act, the High Court states that Shumaila's marriage is contrary to the age stipulated under this law. Further very significantly, as provided under the Child Marriage Act and in the interest and welfare of the minor girl the Court states that she has the option of treating the marriage as voidable, when she attains the age 18years.
The Court, respecting Shumaila's choice to live with Mehtab allows her to reside with him. Further to protect Shumaila's welfare and ensure that she has the option to exit this marriage , the Court has provided that both Shumaila, Mehtab and one of her in-laws, will appear before CWC , once in every 6 months. CWC will ascertain Shumaila's well being.
As I read this judgment, it is not about declaring the age of marriage under Mahomedan law. The Court was confronted with a fairly tricky situation and was required to weigh the rights and interests of the parents and Shumaila. It has upheld Shumaila's right to choice while creating safeguards to provide her an exit from the relationship, if the circumstances so warrant.
If the Court had put Shumaila back in her parents custody, how would that in any way have strengthened women's rights?
It would be worthwhile for feminist and secular activists to read this judgment and contrast it with a 2011 judgment of the Karnataka HC last year (Karnataka HC judgment is also attached). The Karnataka Judges in a similar habeas corpus case, involving 2 Hindus, stated that in case of a love affair of a girl under 21 years of age, there should be a condition that the approval of the parents is mandatory other wise the marriage should be declared void or voidable. The Karnataka High Court, held that the girl was a minor,(she was a few months short of the legal age, 18 yrs), sent her back to her parents home and had the the young man who had married her arrested from the Court itself, on charges of kidnapping. The High Court said that girls under 21 years of age suffer from hormonal imbalance, fall in love with boys, marry and repent at leisure. Hence the suggestion that in love marriages under HMA the legislature should make parents approval mandatory for love marriage under 21 years.
Is this our feminist vision?
It would also be useful to read the Child Sexual Offences Bill pending before President for assent. It is a dangerous legislation, which criminalises, any and all sexual activity between children under 18 years. Far from protecting children, this law will certainly be used to put behind bars children engaged in consensual sexual activity, with those wielding power in terms of class, caste, religion exploiting it to the hilt.
Just to clarify, I am not promoting or supporting personal laws. I am and always have been in favour of constitutional rights for all women. The debate and campaign for an Egalitarian Civil Code fell silent as communal politics and hate propaganda, took over our lives. How to recover our distinct and nuanced voice and not allow it to be drowned out by the shrill UCC rhetoric unleashed by the BJP or the other opportunistic fundamentalists who seek to deny women equal rights in the name of minority and identity rights.
I don't think we need to condemn the Delhi HC judgment, it is the Karnataka judgment that I would argue vehemently against. For not only does it seek to control women's agency,choice, sexuality but also consequently retain purity of caste, class, religion etc.
To support sexual autonomy, right to choice of young persons, gender justice - perhaps a more complex web of strategies, allies and language needs to be crafted. A different articulation of choices, relationships and rights.
Vrinda can be contacted at vrindagrover [at] gmail [dot] com
Karnataka High Court Judgement Mr. Avinash vs State of Karnataka.