In her book The Constitution Is My Home, lawyer Indira Jaising makes an interesting observation — none of our laws provide any definition of marriage. They tell you how to enter and exit a marriage, they list out some rules and privileges associated with it, but nowhere do they explain what marriage is. When it comes to sexual relations within a marriage, this lacuna becomes important.
There is arguably no greater sphere where a person’s dignity and individual autonomy are expressed than in their sexual activity, whether it is the choice of sexual partner or the question of consent to individual sexual acts. Yet, sexual relations are not only universally assumed to be an integral part of marriage but are also often predicated on an idea of permanent and irrevocable consent when it comes to marriage, undermining the idea of sexual autonomy, particularly for married women. This has been at the heart of multiple issues, be it marital rape, adultery, or the restitution of conjugal rights.
There is arguably no greater sphere where a person’s dignity and individual autonomy are expressed than in their sexual activity, whether it is the choice of sexual partner or the question of consent to individual sexual acts.
Take Section 9 of the HMA, which states that where either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply to the court for a decree of restitution of conjugal rights, and the burden of proof lies on the party who has withdrawn to show that their withdrawal was reasonable. Order 21 Rule 32 of the Civil Procedure Code (CPC) further provides for financial sanctions against a person who has disobeyed a decree for restitution.
T. Sareetha v. T. Venkata Subbaiah was a 1983 case where the petitioner Sareetha, a well-known film actress, had been married off by her parents to the respondent at the age of sixteen and they had been living separately for the most part since then. Her husband filed a petition seeking restitution of his conjugal rights. The Andhra Pradesh High Court struck down Section 9 as violating the right to life and personal liberty under Article 21 and promoting no legitimate public purpose, and to that extent, violating Article 14.
It acknowledged that the law was facially neutral and applied equally to husbands and wives. However, it was alive to the differences in how such a decree would affect men and women and found it violative of Article 14 on this ground too. After marriage, the marital home is usually the man’s, or his parents’ home. If the couple is separated and there is a petition for restitution of conjugal rights, it is generally because the woman has left and it is she who will be compelled to return to a home where she does not want to be. It is invariably also the wife who will have to bear and raise any child born from the couple’s sexual activities, crippling her own plans for her future. The data also bore out that the provision was almost always invoked by men against women, and very rarely the other way around.
It acknowledged that the law was facially neutral and applied equally to husbands and wives. However, it was alive to the differences in how such a decree would affect men and women and found it violative of Article 14 on this ground too.
The judgment called the provision equivalent to forced sex and found it to be degrading to human dignity and personal autonomy. It also noted with concern the provisions of the CPC, which at the time included not just financial sanctions but also civil imprisonment.
Subsequent decisions departed from this approach. In 1984, the Delhi High Court in Harvinder Kaur v. Harminder Singh held that the provision does not amount to forced sex but is merely an attempt to save the marriage. It also distinguished cohabitation from sexual intercourse, holding that the law only provided a remedy for the couple to resume living together, which is the essence of married life. Further, Section 13(1-A) of the Hindu Marriage Act provides for divorce as a consequence of non-resumption of cohabitation. Therefore, in a sense, the provision is the first step to a divorce along the lines of irretrievable breakdown, which the parties should welcome if that is what they seek, while also providing an opportunity at reconciliation.
As regards the sanctions imposed by the CPC, the court held that the provision had been amended and civil imprisonment was no longer a consequence of non-compliance. Financial sanctions remained, but these did not trouble the court to any significant extent. The Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha accepted the view of the Delhi High Court, which is the position that currently holds the field.
Ojaswa Pathak v. Union of India is a PIL that was filed by a group of law students in 2019, challenging the validity of Section 9 of the HMA in the Supreme Court. It relies on the doctrine of constitutional morality, privacy, and sexual autonomy that has been fleshed out by the court in recent years, as well as the disproportionate impact on women recognized in Sareetha. The petition is pending adjudication and it is anybody’s guess which way the court will go. But the strongest argument against it has already been made by the court itself in its ruling in Joseph Shine v. Union of India, a 2018 judgment that struck down the criminalisation of adultery.
Section 497 of the IPC stated, ‘Whoever has sexual intercourse with a person who is the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery. In such case the wife shall not be punishable as an abettor.’
Thus, even within the problematic realm of criminalising consensual extramarital sex, the law did not do so equally, betraying its stated goal of protecting the institution of marriage.
A wife, on the other hand, had no similar legal recourse if her husband had an extramarital affair, either against him or his lover. In other words, the crime of adultery, part of a chapter on ‘Offences Relating to Marriage’, was seen as a crime against a husband committed by another man, akin to the theft of one’s property. The woman could neither prosecute nor be prosecuted, for her consent and agency were immaterial in the transaction between the two men.
Thus, even within the problematic realm of criminalising consensual extramarital sex, the law did not do so equally, betraying its stated goal of protecting the institution of marriage or perhaps, revealing the true nature of what it understood marriage to be — a man’s ownership of his wife and control of her sexuality. Naturally, the law made certain assumptions about women’s and men’s sexual natures and autonomy, based as it was on the Victorian morality that prevailed at the time of its drafting.
Excerpted with permission from ‘Courting Equality’, by Mihira Sood, Juggernaut Books.
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