Beti Bachao, Beti Padhao is a popular slogan these days.  India’s female literacy is rising, but Indian society seems unwilling to accept that an educated women will also make her own choices that they may not agree with.  While the formal codified law and the constitution firmly stand behind the individual in her battle against society, the instrumentalities of state do not seem too sure on whose side they should be.

In the first week of August came news of yet another brutal killing in the name of “honour”.  Mamta, herself a Jat, was gunned down by killers allegedly hired by her family for having had the temerity to cross caste boundaries and elope with a Dalit man, Sunil.  At the time of her killing, she had turned 18 a couple of months ago and was headed to the district magistrate to record her statement.  Why was she headed to the district magistrate also has a lot to do with her choices.  She was going there to state before the magistrate that she intended to live with Sunil and the charges of rape and kidnapping foisted upon him by her family were false.


Mamta and Sunil’s case is not entirely unprecedented or one of a kind.  According to statistics maintained by the National Crime Records Bureau, 251 killings were noted in 2015 and 71 in 2016.  The top three states for such killings in absolute terms were Uttar Pradesh, Madhya Pradesh and Gujarat, and caste seems to be the main factor in such killings.  As awful as these numbers are, they do not present the full pictures of how parents and community members try to stop young couples crossing caste and religious boundaries.  Mamta and Sunil’s case itself shows how the legal system is used to try and break up such relationships.


Ostensibly, the law allows all adults capable of making decisions to choose whom they want to marry, whether within the framework of their customary religious laws or under the Special Marriage Act, 1954.  That does not mean, however that the police and the judicial system necessarily prove to be neutral arbiters of the law.  In Mamta and Sunil’s case as well, her father had approached the police and managed to convince them to file charges of fraud, rape and conspiracy, even though his own complaint states that she stepped out of the house willingly.


While such a killing may be one extreme reaction on the part of parents and family to prevent young people from making their own choices in the matter of love and relationships, there are other insidious ways in which the legal system enables the creation of hurdles.  Even where the police or the judiciary are not actively questioning or denying the capacity of women to choose for themselves, on the other occasions, through apathy or simple delay, they enable such harassment through the law.

The Kerala High Court’s handling of the Hadiya case was nothing short of disgraceful.  That it even entertained the petition by her father – knowing full well that she was an adult and capable of making her own decisions – was suspect.  Her right to choose her religion, and who she want to marry was under constant scrutiny and, eventually, her agency as a woman was completely denied by a high court less by law ant the Constitution, and more by pure prejudice.  Hadiya did not even have an opportunity to challenge the high court’s findings given that she was under house arrest and had no means to reach the outside world on her own.  Eventually, Hadiya was free to choose where she went, but not before she suffered an effective imprisonment for no fault of hers.


But, Hadiya’s case is not a one off case.  The phenomenon of parents approaching the high courts directly through habeas corpus petitions demanding that custody of their major children be handed over to them, against the latter’s will, has happened even after her case.  Although the Kerala High Court had refused to interfere in specific instances, in one particular instance, its involvement is worth noting.

Arundhati, a transgender person born Aby James, left home and chose to live as a women.  This prompted her mother to file a habeas corpus petition in the Kerala High Court demanding that she be given custody of Arundhati.  The only problem, of course, was that Arundhati was 25 years old and free to live wherever she chose.  However the Kerala High Court ordered Arundhati to undergo a humiliating psychological test before it could be satisfied that her wishes be respected.  Not only is compelling someone to undergo such a test an affront to basic human dignity, it violates the Supreme Courts judgment in NALSA v Union of India which recognizes the right of transgender persons to choose their own gender.  Satisfied that Arundhati had acted of her own will, Kerala High Court dismissed her mother’s petition, but not before making condescending remarks and consistently misgendering Arundhati.


These high profile cases where parents approach the high court directly are not the archetypal case of parents using litigation to control their adult children’s choices.  Another tactic used is filing false complaints of rape and kidnapping when couples elope to escape sanction from their parents and families.  A study of all cases decided by the Delhi trial courts in 2015 by the Hindu showed that as many as 40% of all cases were related to elopement, and the prosecution was launched as an afterthought by the parent of the girl.   The study of sexual assault cases in Mumbai also quotes a police sub inspector who freely admits that the first information reports in such elopement cases follow a certain script: “If the parents approach us saying their daughter has run away with a boy from the neighborhood, we have to register a complaint of kidnap of minor and later when she says she had relations with the boy, we add the rape charge.  Then it is for the court to decide whether it was rape or not.


This is an edited version of an article  first published in EPW and can be accessed here

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