“Marriage does not give a man the licence to force himself upon his spouse without her consent,” says AAP national spokesperson Ashutosh. In other words, it is consent and consent alone that is the key word when it comes to addressing the debate on marital rape. But has the law marked the boundaries of acceptable sexual behaviour along the line of consent?

Only two years ago, the law had forced its way into Indian bedrooms when the Supreme Court ruled against decriminalising homosexuality. The court had stated that according to the law (Section 377 of the IPC), any form of sex, consensual or non-consensual, that went against the grain of nature was a criminal offence. While this interpretation was meant to uphold the continued suppression of LGBTIQ (lesbian, gay, bisexual, transgender, intersex, queer/questioning) minorities, a few concerns raised by rights activists and lawyers over the definition of ‘unnatural sex’ were largely ignored. Would doggy-style sex be deemed unnatural and therefore illegal? Are two consenting individuals allowed to experiment with ‘unorthodox’ sexual positions and acts, including anal sex? While the court brushed aside these questions, the argument rested solely on the need to maintain ‘man-woman relationships’, and that too of a ‘conventional’ kind. In the judgment, however, the court also pointed out the need for a debate in Parliament on Section 377’s continued relevance.

According to Section 9 of the Hindu Marriage Act titled ‘Restitution of Conjugal Rights’, in situations where a husband or the wife has withdrawn from the company of the other, the court can order one estranged spouse to return to the other’s company. However, in a landmark judgment in 1983, the Andhra Pradesh High Court held that the section violated the individual’s right to sexual autonomy. Refusing to see the institution of marriage as sacred, Justice J Chaudary, in his verdict in T Sareeta v Venkatasubbiah held that Section 9 transfers the onus of choosing whether to have marital intercourse or not from the concerned individual to the State. Further, he stated that such a transfer of rights would offend the integrity of a person and invade his or her marital and domestic privacy.

Though Section 9 does not compel a spouse to have sexual intercourse, Justice Chaudary believed that women would be compelled to do so considering the power relations that existed between a man and a woman, especially in a marital relationship. By holding the individual’s rights over that of the family and the State, the judge concluded that Section 9 violates Article 21 of the Constitution, which makes the right to life and personal liberty a fundamental right.

Unfortunately, the Delhi High Court overturned Justice Chaudary’s verdict within a year, stating that introducing constitutional provisions into the bedroom would be akin to “a bull in china shop and it would “destroy the institution of marriage”. Later that year, the Supreme Court agreed with the Delhi High Court, basing its judgment on the need to preserve the institution of marriage. In other words, an individual loses his or her fundamental rights as soon as he or she enters wedlock. This is obviously not a happy state of affairs in a democracy.

With inputs from Varun Bidhuri |


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