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marriage

Live-in in Love: Juggling Tradition and Modernity in Small-Town India

by Guest Author 08/12/2024

written by Guest Author

By Ashi Gupta (Guest Author)

A few years ago, at a family gathering my aunt casually dropped a comment that left everyone momentarily stunned. She proclaimed, “I’ll ask my daughter to live with the guy she wants to marry before they tie the knot. Just to be sure.” It was a bold statement, especially in a family where traditions have often guided major life choices, even though daily life is governed by a fairly progressive mindset. To my shock, my grandmother nodded in agreement and said, “Yes, that makes sense. Times are different now.”

While the conversation was a pleasant surprise, I knew better than to assume that such theoretical approvals would necessarily translate into full-fledged support if the situation actually arose. Still, that moment stuck with me.

Years later, when I decided to live with my partner, reality unfolded much as I had anticipated. My family’s reaction was a mix of acceptance and hesitation. It wasn’t the outright disapproval that most couples face, but it wasn’t as smooth as that earlier conversation.

Unlike couples in bigger cities or abroad, who live together quietly without their families’ knowledge or in ignorance of their disapproval, I didn’t have that option. My partner and I chose to live on my farm, just 30 minutes outside our hometown where both our families resided. It wasn’t just the proximity that made discretion impossible—it was also my upbringing. I grew up in a family that valued openness, honesty, and the freedom to make one’s own choices, so I couldn’t imagine keeping such a significant decision a secret.

The decision to live together stemmed as much from uncertainty about marriage as it did from questioning the institution itself. I was ready for the commitment of starting a life together, but not for the expectations and obligations, particularly for women, that come with marriage. This deeply personal choice unintentionally became a social experiment, testing how my family and the society around us would react to the open, defiant reality of my live-in relationship.

I had always been vocal about my skepticism of marriage as an institution, and my family knew I tried to live by the values and principles I believed in. However, they had been quietly hoping I’d eventually “grow out” of what they saw as a rebellious phase. When I told my parents about my decision, they were surprised but not really shocked. After many deep conversations, they entered what I like to call the “confused-but-trying” zone.

My mom’s primary concern was, “What will people think?” This honestly surprised me because she had always lived her own life by her beliefs, often ignoring societal judgment within certain boundaries. My dad, on the other hand, didn’t care about others’ opinions. His disagreement with my choice stemmed from the lack of legal protection and rights that a live-in couple has compared to a married one. They also worried that my younger siblings might follow my example—perhaps they felt one unconventional child was already enough.

In the village, things were different. People were curious, both about our marital status and why an educated couple had chosen to shift to a farm. “When did you get married? Wedding must have been in the city no” they’d ask cautiously, after some polite warming up—because they had not heard of any function taking place. I would simply smile and let them draw their conclusions. Most decided we must’ve had a secret COVID wedding, which worked out fine for me. Why correct them? It wasn’t as though I could hang the Supreme Court judgment on live-in relationships on my front door, though I was tempted to on several occasions.

The ambiguity worked in our favor. Living on a farm, away from the prying eyes of an apartment complex or colony, limited the gossip. Over time, we became known as “the couple who lives here,” with marriage assumed as a prerequisite. I recognized the importance of safety and discretion, especially in a village where societal judgment could quickly escalate. Thankfully, khap panchayats don’t operate in our region, but given the political climate, I wasn’t about to test the boundaries of tolerance.

In urban settings, however, the ambiguity created confusion. When I introduced my partner as “my partner,” most people thought I was referring to a business arrangement. “Boyfriend” felt juvenile, while “husband” was a term I wasn’t ready to use. My family, on the other hand, stuck to calling him my “friend,” a euphemism that reflected their discomfort with the situation.

In one of our many conversations on the topic, my mother asked, “Why do your LGBTQ friends fight so hard for the right to marry, while you’re choosing to live in and legitimize it instead?” It was an interesting question that forced me to reflect. It also demonstrated my mother’s willingness to discard her discomforts about homosexuality if it would help to change my mind about marriage. For me, living together was about exercising agency and freedom to live a life true to my belief system and having the freedom to test compatibility without the societal and legal bindings of marriage. For my LGBTQ friends, the fight for marriage was about equality and the basic right to love openly.

Live-in relationships are increasingly common in India now. They have been given legal recognition and some rights as well, despite the misconceptions. However, they still exist in a gray area of societal acceptance. Recent cases, like that of Shraddha Walker, where violence in live-in relationships was sensationalized as being caused by the arrangement itself, have only added fuel to the fire. My mother tried to use such cases to argue against my decision until I sent her statistics on domestic violence within marriages.

With time, my family’s discomfort has reduced. Acceptance has also come with the discovery of many of my cousins living with their partners in various cities. My parents still introduced my partner as a “friend,” but now because they think ‘partner’ does not do justice to the relationship. They would like me to choose a better term.

Choosing to live together before marriage in small-town India has been more than just a personal choice; it has been a quiet rebellion against societal expectations. It has been an attempt at carving out a space, albeit a messy one, where love and companionship can thrive on their own terms, even if those terms unsettled others.

My grandmother, the woman who once said, “Times are different now,” hasn’t said a word directly to me about this. I suspect she’s playing the long game, waiting for me to “come to my senses” soon. I have not reminded her about her words either.

But the times are indeed different now, even if the transition has been difficult. Sometimes, progress looks like a passive acceptance of new norms simply because more people are participating in it. Other times, it can look like quietly living one’s truth, trusting that the small-town society will eventually catch up. As for me, I’m just trying to figure out how to balance authenticity with social survival. Maybe one day, I’ll frame that Supreme Court judgment and hang it on a wall. Maybe one day it won’t be needed at all. Until then, I’ll keep smiling and letting everyone fill in the blanks about the status of my relationship on their own.

08/12/2024 0 comments 136 views

The Vermilion Tales

by Parika Singh 08/12/2024

written by Parika Singh

By Parika Singh

“Roli di! Roli di!” Roli fell off her armchair as an urgent cry startled her out of her reverie. Once again Roli had drifted off while imagining her scenarios in distant lands. She was sitting on the verandah of her house, reading a book and sipping warm milk from her favorite mug. But reading about her ferocious, independent female protagonists invariably lead her to thoughts of her own future and the kind of life she wants to lead. These days such thoughts had been plaguing her all day, refusing to let her sleep. She often found herself dozing off during the day while flitting from one possible situation to another.

“Roli di! Where are you? I have good news!” Her younger sister Shagun’s persistent screams would only increase in volume and tenacity if she did not go and enquire about her arguably questionable definition of ‘good news’. She had come to realize that lately good news only meant one thing in her household. Another prospective offer for marriage had arrived and all the inmates of her house will exclaim with joy and enthusiastically debate the merits and demerits of the poor unsuspecting groom the entire day until she put a stop to it.

Sadly she was not mistaken this time either. The moment she went inside and approached her visibly thrilled sister, she was presented with an official looking document containing all the details of a slightly older looking man called Sameer, right from the time of his birth to whether he enjoys toast for breakfast. “Roli di, look! This just arrived in mail. Ma says he has such pleasing features. And Papa is convinced that your star charts will certainly match this time”, chirped Shagun. Looking at her face alight with happiness, Roli did not have the heart to tell a 15 year old girl that marriage required a lot more than pleasing features and perfectly aligned stars.

She sighed and went to look for her parents and found them in the middle of a heated discussion in the kitchen. As soon as they saw her, they immediately stopped and smiled at her. She was enveloped in a hug which reassured her for just a tiny second that everything will turn out to be all right in the end. She broke apart and threw an enquiring look towards her mother. Her parents returned identical sheepish expressions and confirmed the news. “Rolu beta, we just spoke to Mr. Verma over the phone. They have assured us that he comes from a very nice family and owns his own publishing business”, Ma began speaking but was interrupted by Papa who said, “and he is only two years older than you. I checked. You look very young for a 24 year old anyway. Sometimes these photographers make people look quite aged in pictures.”

She quietly let them finish and took a deep breath to start her oft repeated speech every time she had to listen to them praise a random guy without knowing anything about him. “Ma, Papa”, she began, “how many times do I need to tell you that it does not matter to me what kind of family he has or what his career prospects are?” She wanted to scream in frustration but continued calmly. “He might become my life partner and a life is made up of more than a job or family members”. She looked up at them exchanging glances and studying his profile again and said, “It is just a piece of paper. It may be great for job recruitment but it cannot determine whether we can tolerate each other our entire lives”.

Her mother started twitching a strand of hair between her fingers as she does whenever she gets anxious and her father noticing this, immediately put a hand on her shoulder to comfort her. Looking at their seamless interaction, she realised that a partnership is made up of these small gestures. Slight caresses, thoughtful words, constant support, this is what makes a long standing relationship successful. It is borne out of years of getting to know each other and developing patience and mutual understanding in small bouts every day. No amount of horoscope matching and essay writing in a marriage curriculum vitae will ever substitute the presence of a person in front of you and taking time out to spend real moments with them, each day building newer memories to be cherished forever.

She wondered if she could use this in the new story that she was writing and was impatient to finish this conversation and dive back into her world of books and imagination. Her mother’s voice broke into her thoughts once aging completely missing her point. “Rolu beta, you are such a wonderful girl and I am sure he is a very nice boy. Why will you tolerate each other?” Ma asked in utter confusion. “Ma”, I laughed, “I didn’t mean that literally. I just meant whether we will be able to appreciate each other’s joys and passions, annoying habits and personality quirks.” “You know me very well. I spend hours day dreaming and thinking about make believe worlds. I miss entire conversations around me when I imagine the next words of my characters. I am so immersed in my stories that I sometimes forget whether I have eaten and end up eating twice!” I finish emphatically.

“Yes, she does Ma”, Shagun suddenly appeared out of nowhere and chimed in, “I have seen her finish entire biscuit packets without realizing what she is doing. Which is why you call her Rolu don’t you?” “What if she finishes all of this boy’s food when she can’t think of an ending to her story?” Shagun burst out laughing at her own cleverness. Ma and Papa tried to smother their own smiles while Roli merely rolled her eyes. She usually pretended to be upset with her sister whenever Shagun teased her about her nickname. But in truth, she would always prefer being called Rolu, as a reference to her chubbiness and love for food rather than her actual name. As beautiful as it sounded, Roli stood for the vermilion on the forehead that sealed the fates of millions of women in this country, forever confining them to limitations of their marital status. Even her younger sister Shagun was bestowed with a name that signified the beginning of auspicious occasions, more of than not, marriage. Perhaps young girls should be named after the spirit of being carefree and following their own path, maybe then they will be allowed to make decision in their own lives. But that was probably wishful thinking on her part. You do not determine your own name, any more than your name determines how you choose to lead your lives.

Pushing her morbid thoughts to the back of her mind, she stuck her tongue out at Shagun and replied, “I may be the one stuffing sweets but look who’s tummy is about to burst Golu”. She had deliberately picked her made up name to annoy her. Before Shagun could retort however, Ma as always intervened and said, “all right all right, that’s enough girls”. “Golu, I mean Shagun”, she quickly altered looking at her crestfallen face, “go do your homework.” “And Rolu”, she finally turned towards me, “we have had this conversation before. A piece of paper does not mention whether your interests will match and whether you will like each other’s habits. But neither does it mention that you will automatically dislike everything about each other. Those details come into the picture later when you start living with someone. It takes many years. You can’t know that about anyone anyway in a short time. It’s a risk we take each time and sometimes it pays off beautifully “, she finished with an adoring glance towards my father. “But that’s just it! What if it doesn’t pay off? What if I’m stuck with someone who is unkind or who has smelly feet? What if he doesn’t wish to live with someone who spends more time with make believe than she does with reality?” She tried to argue her stand again but her mother as usual ended that discussion by claiming, “You have strange priorities”.

She huffed and puffed all the way to her room and shut the door with a bang. She was furiously pacing in her room when her door opened and tiny feet entered her room hesitantly. “Roli di”, Shagun called out meekly. “Are you mad because I told Ma about your chocolate treats? She told me that she already knew about them”. Roli smiled at her, her anger melted, and replied, “No sweetie. I am just upset because Ma and Papa want me to go start living with someone I don’t even know”. “But didi”, Shagun interjected, “you are the one who is always reading to me these stories of people falling in love and going to live on the beach or among the mountains all alone. I thought you wanted that for you as well”. “I did. I still do”, Roli replied, “but not like this. I don’t want to be judged on the basis of a horrible snapshot and a few words failing to detail my life adequately”. “I want to sit in a restaurant and meet someone’s eyes across the room. I want to go into a store and reach for the same box of cereal. I want to go for a walk and talk endlessly until I feel like the evening should never end”, she finished dreamily. Shagun suddenly started jumping up and down and clapping her hands. “That’s so easy!” She exclaimed. “When that guy comes to meet you, I will ask him to sit on the opposite end of the room and look at you. Then you can reach for the same piece of sweet at the same time and then you can go for a long walk and talk to him”. At Shagun’s words filled with childish wonder and simplicity, Roli realised that sometimes complicated problems need difficult solutions. But at other times, they have solutions as simple as clapping your hands and jumping in the room. Which is why she joined her sister and they danced around for the rest of the evening.

The next day Roli woke up bright and early and dread settled in her heart. She had been temporarily distracted last evening while playing with Shagun but now that she actually had to meet this guy today, worry engulfed her and she could not think straight. She looked at the words she had written last night but could not make any sense of it. What was she writing about? Who was telling the story? And whose story was it anyway? The words fluttered and flew in the wind. The pages fell down in a heap on the floor as the room swum around her and she felt her entire life slipping away from her along with those words. She blindly reached for one of the falling pages and clung onto it until her eyes began to focus again. She had just begun to read one of the paragraphs she had written last week when her eyes fell on one particular sentence when her principal character Esmerelda was gazing out of the tiny window in the room that she was locked in. ‘She saw the morning dew trickle down the shafts and each glistening drop filled this desolate room with warmth and hope’. Roli read her sentence over and over again until she could start breathing again. She gathered all her courage and went downstairs to meet a strange man and his family, all the while praying that by some miracle they had decided to not show up today.

But like all her prayers, this one too fell on deaf ears as she heard the sound of laughter and conversation in her living room. She entered the room and attempted to curve her mouth at three unfamiliar faces but froze mid way when one pair of curious warm eyes met hers. The entire room fell away. She was transfixed. She could no longer hear anything around her until her mother stood right in front of her and started introducing everyone. “Roli beta”, she emphasized her given name, “this is Sameer and these are his parents. We have a surprise for you”. Roli agreed in her head before her mother could even continue. She was definitely surprised. She had never entertained the possibility that she could feel this connected to someone she had never met. What was it about him that made her want to study his face and write ballads on his keen expressions? This was so unlike her. She momentarily forgot that her mother was still talking. “So what do you think Rolu?” She smirked mischievously. “Did you like our surprise?” Roli looked at her blankly, unable to fathom Ma’s behavior. Did she expect her to declare her feelings in front of an audience?

“The books silly”, Ma could not contain her glee anymore as she pointed at the stack of books next to the food. Papa realizing that Roli was still looking quite lost; picked up the top one and handed it to her with a flourish. Roli slowly read its title, unable to believe her eyes. ‘The vermilion tales’ was the heading. Shagun could not hold herself still any longer and came running towards her. “Read underneath it!” She yelled breathlessly. “By Roli Mehta”. “Your parents got it published”, Sameer spoke for the first time with a twinkle in his eye. His parents soon joined in, “your father came to us with a collection of your short stories and usually we don’t entertain new writers. But Sameer read them and loved each one of them before insisting that I read them too. And what can I say? The result is in your hands. You should be proud of yourself”. Everyone kept explaining their month long secret plan around her but Roli was in a daze. As she unfolded page after page, she was haunted by visions of her words falling down earlier in her room. Without her needing to confide in her parents, they had lovingly sewn those pages together and presented them to her in the form of a beautiful book.

But as she reached the end, the last page of the book caught her attention. It was a handwritten note. She read it once. She read it again. And then she smiled. She knew she won’t be able to stop smiling for a very long time for this is what the note had said:

‘Dear Roli,

Your writing is skillful and captivating. But it is your words which touched my very soul. Their raw sincerity ignited my imagination and stirred my senses. I had been trying and failing to put a face to these powerful thoughts. And now that I have, it will always be associated with your words of beauty and grandeur and your stories of courage and kindness.

I have been told that you despise your name because it stands for a constricting tradition. But you have the power to free those chains and liberate it. You can make it into a weapon of choice and individuality, symbolizing women like you who opt to change the narrative around them. I would always wish to stand next to Rolu and spend a lifetime getting to know her quirks. But I know I will willingly follow Roli for the rest of my life, spectacles on her nose, books in her hand and a streak of vermilion blazing on her forehead.

I have also been told that I had to stare across the room when you enter. But your vivacious sister never mentioned that I will not be able to look away. Now all you have to do is reach for a plate at the same time, hold my hand and take a walk with me. And I know that I will never want the day to end.

Sincerely,

Sameer’

08/12/2024 0 comments 43 views

“I Think My Marriage is Ending”

by Guest Author 08/12/2024

written by Guest Author

By A ‘Common Woman’

When Arjuna went to the battlefield and realized that he must fight his loved ones, he no longer wanted to fight. His fingers trembled as his bow fell from his hand. He was depressed.

When you are depressed, you lose your will to fight. You want to self-destruct. You feel completely and utterly hopeless. If you are me, then you do not want to feel positive about a situation because you are afraid, you’ll sink lower into depression if you allow yourself to feel happy for even a moment.

I think my marriage is ending. I know the feeling – it’s familiar to me by now: exhaustion, high blood pressure, insomnia, everything feels… static. It’s like you’re a fallen soldier on a battlefield. There’s a war going on around you and you know you must fight, but you’re lying on the dusty ground, seeing blood and gore around you thinking, “What’s the point?” You want to rest but you can’t. You want to silence your mind, but all you feel is numb. Pointless. Fleeting moments of happiness, amusement, and joy come and go, as you observe the world with a heavy heart and a restless brain.

Deep down, I know my marriage was never a strong one to begin with. Sure, it carried with it the promise of a wonderful and fulfilling relationship. After all, who voluntarily enters a marriage thinking it might not last? I entered mine with hope and trepidation. I knew we had potential problems we needed to sort out, but as long as ‘we’ were a team, we would manage to overcome every challenge sooner or later, right?

Turns out, when it comes to a large number of men, or perhaps Indian men, there is no ‘we’ in a marriage. For mine too, the ‘we’ in my marriage belongs to my husband and his parents. In one of the many fights we had in the first couple of months of our marriage, I’d yelled, “You and your parents are a team, but what about me?” I don’t even remember what he said, but I highly doubt he’d have reassured me otherwise.

I have never been part of my husband’s club since we got married until the day of our impending divorce. His parents make all the decisions for their thirty-three-year-old child. What work he does at his office, what he wears to what he eats are all dependent on their wishes. He doesn’t get up from bed in the morning or go to sleep at night without hearing from them. And if you’re wondering whether he was like this on our honeymoon as well, let me tell you he canceled having a honeymoon in the first place and instead, chose to spend his vacation days hanging out with his parents. In fact, he spends all his vacation days reserved for his parents – not even one out of twenty-one days is for anyone else. And not a single one belongs to me.

I never thought I would be the girl on the internet ranting about her husband. Then again, I never thought I would be the girl who’d be contemplating a divorce when I have wanted my own beautiful love story since I was five years old. To have the perfect partner, you must be the perfect partner. So I became the most perfect version of myself I could be: got the best education from the best places, got multiple certifications, got the good job, and developed all the skills a person should have – be it cooking, taking care of pets, driving, changing a bulb, you name it. I continue to educate myself on all things that matter to him, from how to give the perfect blowjobs to how to invest wisely in high-risk investments. From doing my laundry to filing my taxes, I do everything and try to learn everything.

Yet, it makes no difference to my marriage. If my mother-in-law tells him not to eat a banana because it’ll give him ‘high cholesterol’, he won’t touch a banana. All the logic in the world given by his wife makes no difference. After a point, you think, “Did my husband want a ‘wife’ for his parents or a best friend for life?” Sadly, I know the answer and it depresses me more.

I do not want to complain about my husband. What I do want to do is ask all parents – Is this what you want, your child to remain co-dependent for the rest of your lives? What will that child do when you are too old, and he can neither talk to you nor his estranged wife and kids? Why are so many mothers hell-bent on making their children completely unsuitable for the world? Will we as a society ever change, or will you continue to ruin the lives of more women and ultimately, blame them when things fall apart?

In the end though, Arjuna had to perform his duty, his dharma, just like millions of Indian women who fight for their marriage despite society considering them the outsider in a family of parents and their son. And when they fail like the Pandava prince, they surrender the fate of their lives to Krishna, and the divine will of the universe.

Guest Author (Anonymous)

08/12/2024 0 comments 40 views

Marital Rape in India: An Outdated Legislation

by Guest Author 08/12/2024

written by Guest Author

By Prakhar Tripathi

The doors of Delhi High Court have been fluttering since last one month with voices being raised to criminalize exception 2 Section 375 of the Indian Penal Code (IPC). All India Democratic Women Association, RIT Foundation and two other organizations are behind putting forth this initiative. The Court has been going through the legality of the exception and whether it serves any purpose in modern-day India or is it just a colonial provision still draping in the books of the criminal manual.

Exception 2 to section 375 of the Indian Penal Code reads as follows: –

Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

A majority of the common law countries have already done away with the draconian provision of marital rape wherein the husband considers the wife as his chattel and performs sexual acts with her even if it is against her will. In fact, India remains one of the only 32 countries in the world where this exception remains to prevail.

England and Wales outdid this provision in the case of R v R in the year 1991 by the Appellate committee of the House of Lords. In Germany, marital rape was outlawed in the year 1997 after female rights activists for 25 years protested against it. Australia criminalized this provision in the year 1991 in the case of R v L by stating that such law was not part of the Australian Law.

Henceforth, the originators of the common law have outdone with this provision, but it still remains an evil continuing to haunt Indian society.

Let us analyse how faintly this provision stands on the footholds of the legal bedrock.

Prima facie, there are three ingredients of rape :- ‘Sexual Intercourse’, ‘Against her will’ and ‘Without her consent’ . Any act satisfying these three criteria falls into the category of Rape. But then, a stalemate has been created in the same section by giving protection to a person who is legally wedded to the victim and whose act satisfies all of these criteria. The exception gives her husband the right to have sexual intercourse with her whether she is willing or not eventually becoming a subject to his whims and fancies thus, violating every right which the women as an individual possess.

Over the years, lots of women in India have been subjected to this social evil. The National Family health survey (NFHS) 2015- 2016 states that 99.1 percent of the sexual violence cases go unreported and an average Indian woman is 17 times more likely to encounter sexual violence from her husband than from others.

The legislators of the country put forth the argument that it might be detrimental for the Indian family structure if this change in the statute is allowed almost overlooking the fact that this exception is violative of the pristine fundamental rights that our constitution provides.

Violative of Article 14 and 21

Article 14 of the Indian constitution states that there shall be equality before the law but the State has to follow an intelligible differentia wherein like should be treated alike and different treatment of people who are in different circumstances. The test of intelligible differentia has been laid down in the case of State of West Bengal vs Anwar Ali Sarkar wherein it has been held that that the differentiation or classification needs to have cogent nexus with the purpose sought to be realized by the statute in question. The exception acts as a sledgehammer in the statute wherein it creates a stark difference between women who are married and those who are unmarried. By the creation of this exception, the section fails to deny the very protection to married women for which it has been devised. The distinction so created neither has a rational nexus with the statute so created nor does it serve the purpose sought by the section.

Similar has been the view of the J.S Verma committee report constituted to recommend changes in the criminal law system which emphasised highly that the exception related to the marital rape should be done away with and that marriage is never an irrevocable consent to sexual acts and that wife is never a subservient chattel of husband.

The exception also violates Article 21 of the constitution which provides for Right to life and personal liberty. The Apex Indian court has in various cases expanded the meaning of ‘life’ in Article 21 by quoting the observation of Field J in the American case of Munn v Illinois wherein it has been stated that the term ‘life’ means much more than an animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. In the case of ‘State of Karnataka vs. Krishnappa it has been held that sexual violence is an intrusion of the right to privacy and sanctity of the female’. In the case of Suchitra Srivastav vs Chandigarh administration it has been held that Article 21 includes the right of a woman to make reproductive choices. None of these judgements differentiate between a woman who is married and the one unmarried. Also, none of the other offences mentioned in the IPC propagate such an arbitrary and repulsive differentiation between a married and unmarried woman. Section 375 is the only anomaly that remains. Henceforth, the contrast created by the section is violative of Article 14 and 21 of the Constitution.

Progressive Judicial Pronouncements

Time and again has the Indian Judiciary held that the exception is a dying provision and needs to be done away with. In the case of Sakshi vs Union of India reference was made to the case of R v R [1991] 4 All ER 481 in which it has ‘been held that a husband and wife are equal partners in a marriage, therefore a husband not being criminally liable for raping his wife if he has sexual intercourse with her no longer forms part of the law of England’

In the case of Satyawati Sharma vs Union of India it has been held that legislation that might have been reasonable and practical at the time of their enactment may become redundant, arbitrary and unreasonable with the lapse of time. Similarly, exception 2 of IPC over the years has become redundant and serves no purpose in modern day India. In the case of Nimeshbhai Bharatbhai Desai vs State of Gujrat it has been held that wilful perverted sexual acts with wife would amount to cruelty under 498A of the IPC because then the normal sexual relations which form the basis of a happy married life would come to a standstill and a husband having sexual intercourse with his wife is not using her just as her property but filling the marital consortium.

What we can discern from all these judgments is that sexual intimacy between the husband and wife is one of the major building blocks of their relationship. The kind of intimacy husband and wife want to have in their relationship needs to be thoroughly discussed and should be done with mutual consent of both of them. If the female is not willing to have any kind of perversion in their intimate life, then it is clearly her choice and she has all the rights to do so. Forcing her against her will, would amount to cruelty and eventually be violative of all the rights our virtuous constitution gives her.

The Way Forward

Therefore, it is high time that the polarity created between married and unmarried women by the statute needs to be done away with. The married daughters of our country need to have a life filled with dignity and respect; that the laws made to inoculate them do not act against them. Although, an act of caution has to be seen while enacting this provision. That is, men should not be at the receiving end of this new change in law. There has been an alarming rate of rise of false rape cases in India, because the only pre-requisite required to file a rape case is the statement of a women. Therefore, various innocent men in India suffer unknowingly that they might at the receiving end of section 375. What is to be seen is that after removal of exception 2, the section is handled with utmost care and precision which allows both men and women to be equally treated by the statute and that only genuine cases of marital rape come to the court retrenching its time and the value of the justice delivery system.

08/12/2024 0 comments 22 views

Raising The Age of Marriage of Women in India: A Step Forward or Backward?

by Guest Author 08/12/2024

written by Guest Author

By Srishti Sarraf

On December 15, 2021, the Union cabinet gave clearance to the proposal of raising the legal age of women for marriage from 18 to 21 years, making the legal marriage age of women at par with the legal marriage age of men. This was done on the recommendation of Task Force report headed by Ms. Jaya Jaitly, former President of the Samata Party, so appointed by the Ministry of Child & Women Development to examine the issue about the age of motherhood, imperatives of lowering maternal mortality rates and improvement of nutritional levels along with other incidental issues in the previous year. Admittedly, the report was prepared after surveying students of 16 universities, where 70% of the respondents agreed that the marriageable age for women should be increased to 21.

Notably, to give effect to the said proposal, on December 21, 2021, The Prohibition of Child Marriage (Amendment) Bill, 2021 was introduced in the Lok Sabha that is now before a standing committee for further scrutiny owing to the protests that it received from opposition parties. Besides, changing the definition of the child, the draft legislation seeks to amend seven personal laws namely the Indian Christian Marriage Act, 1872; the Parsi Marriage and Divorce Act 1936; The Hindu Adoptions and Maintenance Act, 1956; the Special Marriage Act 1954; the Hindu Marriage Act, 1955; Hindu Minority and Guardianship Act, 1956 and the Foreign Marriage Act, 1969. Further, it declares that provisions of the Act shall have an overriding effect over every other law, custom, usage or practice governing the parties concerning marriage. Above all, it makes the amendments effective, to the age of marriage, two years from the date the Bill receives it receives Presidential assent.

Even though the proposal as well as the draft legislation sounds progressive prima facie, the moot question here is what are we aiming at when we are raising the marriage age of women? The statement of object & reason of the draft legislation is vocal in affirming that the Bill aims to address the issues of women holistically and should be seen as a measure for the empowerment of women & gender equality as this is to increase the female labour force participation along with making them self-reliant and enable to make decisions themselves. Further, upon asking to rationalize their recommendation, Ms. Jaitly, the head of the task force who has recommended this change commented, “My understanding is that gender parity, equality and empowerment cannot start if there are some age differences. If the voting age is the same then marriageable age should also be the same. Some of the voices said that it looks as if women are just supposed to stay at home and produce children and need not be allowed to study and add to the national wealth of the country. It is not fair for girls to get tied up. The only way we can stop girls from becoming a financial burden is to help them earn.”

While this move seems to be a positive one for women in India that will allow them to pursue their career first and get married and have children later, digging below the surface reveals a huge expectation-reality mismatch. By raising the age of marriage of women, can the law now completely stop underage marriages? Is it practically possible? In other words, law alone has never been sufficient to control the age at which people marry their daughters. While marriage of minors is a complete no-no, this move of the Government to introduce a Bill for raising the age of marriage without inserting any provision for penalty for its violation, seems but an empty exercise, perhaps politically motivated. Infact, a close analysis suggests that the upward revision of marriageable age will widen the net of law-breakers and create more problems than solutions.

It should be noted that all across the world, 18 years is ideally taken as the age of majority. Article 1 of the United Nations Convention on Rights of the Child, 1989 affirms 18 years as the majority age. Moreover, according to scientific and psychological principles as elaborated by Mr. Laurence Steinberg, the human neurobiological maturity is reached at different ages, as different brain systems mature along with different time tables, and different individuals mature at different ages and different rates. As per these psychological and behaviourist theorizations, children by the age of 16 to 18 years develop their full cognitive abilities. Thus, there seems no point in raising the age of marriage for women to make it at par with the age of marriage age of men.

Statistics show that India is home to every third child bride in the world and that now if the age of marriage in India is raised as 21 years, about 35% of women would get married before that. Thus, there is not even the slightest possibility that by pushing up the age limit, the law-breakers would suddenly experience a change of heart.

Further, in the queue of problems, the most controversial and complicating gap of the ‘void ab-initio’ clause is still unresolved. As a matter of fact, the present Prohibition of Child Marriage Act, 2006, views underage marriages as voidable at the option of the minor party, thus having no legal validity and therefore “void” only if the minors challenged it. A valuable aspect of the law is thus the right of the minor to repudiate or annul the marriage even after she turns major. The proposed amendment will also not make child marriage, in its present form – void, at the outset, and it will continue to remain voidable at the option of the contracting party who was a child at the time of the marriage. In this regard, various experts associated with the cause have also expressed their concern. For instance, Vikram Srivastava, founder of “Independent Thought” and Convenor, Campaign against Child Marriage, commented that “It is unclear how this increase in age would resolve or restrict solemnisation of marriage if it remains to be valid.” Similarly, another expert, Dr. Renu Singh, Country Director, Young Lives India, has criticised the proposed draft legislation on account of having no amendments to make child marriage void.

Thus, when taken in totality, the fate of this proposal reminds us of the words of Hon’ble justice late V. K. Krishna Iyer, who once aptly commented that “The law which cannot be implemented is a satanic law and the same must be scrapped out.” The present proposal seems to be full of practical impediments and technical loopholes, and therefore will achieve precious little, even if passed.

08/12/2024 0 comments 24 views

What is the Applicable Law if an Indian Marries a Foreigner : An Analysis

by Guest Author 08/12/2024

written by Guest Author

by Mahak Singhal

What are the laws in India if a foreigner marries an Indian? Does that entitle him to claim permanent residence in India or even a passport?

Special Marriage Act, 1954, [“SMA”] and Foreign Marriage Act, 1969, [“FMA”] govern the foreign marriages in India. Therefore, the client can register the marriage in either one of them.

Indian Laws

Since the legal age for marriage in India for girls is 18 years and for boys, 21 years, the same rule extends to marriage with a foreign national, even though their country’s domestic law may prescribe a higher or lower age for marriage.

According to SMA and FMA there exists a 30-day notice requirement to be given in India if one partner is permanently and the other partner is temporarily residing in India.

Section 5 of FMA – When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the First Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given, and the notice shall state that the party has so resided.

Section 5 of SMA – When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice thereof in writing in the form specified in the Second Schedule to the Marriage Officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.

Procedure

The parties have to provide a notice to the Marriage Officer of the district in which at least one of the parties has resided for a period of not less than thirty days.

The form provided in the second schedule of the Special Marriage Act is to be provided as the notice.

The notice will be published by the marriage officer by affixing it to the place in his office and will keep the original copy of the notice in the Marriage Notice Book. (Sec 6 of SMA)
If a person has an objection to the marriage, he/she is allowed to raise the objection within 30 days from the date of publication of notice by the marriage registrar. (Sec 7 of SMA)
During the court marriage, a declaration is to be signed by the parties along with three witnesses declaring that the parties are doing the marriage with their free consent. (Sec 11 of SMA)
The marriage can be solemnized at any place at a reasonable distance in the Marriage Officer’s district. However, it will not be considered valid unless each party says to the other in the presence of the Marriage Officer and the three witnesses and in any language understood by the parties,-“I, (A), take the (B), to be my lawful wife (or husband)”. (Sec 12 of SMA)
After the marriage is solemnized, the Marriage Officer will enter a certificate in a book that is kept by him, called the Marriage certificate Book and the certificate is to be signed by the parties to the marriage and the three witnesses. The certificate is deemed conclusive evidence of marriage being valid in India. (Sec 13 of SMA)
The whole process of registration of marriage has to be completed within 3 months from the date of the notice was served. (Sec 14 of SMA) WHEREAS the time period is 6 months if the marriage is registered under FMA (Sec 16 of FMA). Otherwise, new notice will have to be submitted after the lapse of time.

Citizenship

The Court observed that any person who is married to a citizen of India and has resided in India for the past seven years can make an application for citizenship by registration. Section 5 of the Citizenship Act, 1955 deals with citizenship by registration which allows the central government to register someone as a citizen of India.

Citizenship of India by registration can be acquired by-

A person who is married to a citizen of India and is ordinarily resident of India for seven years before making an application for registration; or
A person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one year before making an application for registration.

Alternate – Overseas Citizen of India Cardholder [“OCI Cardholder”]

https://ociservices.gov.in

https://www.mha.gov.in/sites/default/files/OCIBrochure_23072021.pdf

If an Indian citizen or OCI Cardholder has a spouse of foreign origin then that foreign origin spouse can apply for registering as OCI Cardholder (under section 7A of the Citizenship Act, 1955), if the marriage has lasted for two or more years.

Benefits of having an OCI Card –

Grants the permanent residency in India.
A person will not lose his/her citizenship of their home country.
Multiple entry lifelong visa for visiting India for any purpose.
Exemption from registration with Foreigners Regional Registration Officer (FRRO) or Foreigners Registration Officer (FRO) for any length of stay in India.
Registered Overseas Citizen of India Cardholder shall be treated at par with Non-Resident-Indians in the matter of inter-country adoption of Indian children.

https://www.mea.gov.in/images/pdf/oci-faq.pdf

Point 40 in this link states that an Indian Passport cannot be issued to an OCI Cardholder. It is only issued to a citizen of India.

Documents Required for a Marriage under the Act from the Parties:

The notice signed by both parties.
Receipt of fees paid along with the notice.
Date of birth proof of both the parties.
Residential address proof.
Affidavit – one each from both the bride and groom.
A statement affirming that the parties are not related to each other under the prohibited degree of relationships.

Additional Or Alternative Documents Required Only From Foreigners:

Proof of residency and address in India.
A valid passport
Original birth certificate
Visa
Certificate of single status
Letters of no objection through the home country’s embassy regarding the free consent of the parties
Death certificate or divorce papers, if required by the parties

08/12/2024 0 comments 30 views

Death Of Memory Machaya – Child Brides In Zimbabwe Still Awaits Justice

by Guest Author 08/12/2024

written by Guest Author

By Dheeraj Diwakar

A fourteen-year girl died while giving birth at Church Shrine in Zimbabwe. The girl was forced to marry at an early age. After two hours of her death, she was secretly buried by Church. This incident caused a serious outrage among citizens and Human Rights fraternity all over the world. This case has highlighted the age-long practice of Child Marriage in Zimbabwe. United Nations in its statement condemned the incident and criticized the Government for not taking substantial steps to prohibit Child Marriage in practice. The silence kept by the Government of Zimbabwe raises several questions i.e., Will child-brides in Zimbabwe ever get Justice? This piece seeks to legally analyze the plight of child-brides in Zimbabwe.

Despite various International Human rights movements initiated to prohibit child marriage, the statistic of Child marriage is alarming. About 31% of girls below eighteen years of age are married, of which 4% were married before fifteen years. The age difference between bride and groom is even more concerning. According to data of 2014, about 20% of girls aged 15-19 years who are married have spouses ten or more years older. This is the main cause of gender-based violence, as about 20% of women have experienced sexual violence in their life. The mortality rate for child brides is higher than the average mortality rate.

The country has two different sets of laws concerning marriage i.e., Customary Marriages Act and Marriage Act but neither of them sets the minimum age of marriage. On the other hand, Customary law permits polygamy. Zimbabwe’s constitution is progressive which enshrines gender equality and justiciable rights. Section 78 prescribes a minimum age limit for marriage i.e., 18 years, and condemns coerced marriage. It says, “no person shall be compelled to marry against their will”. Section 26(2) orders the State to implement measures to prohibit children from getting into matrimonial alliances.

Constitutional Court in the landmark case of Loveness Mudzuru has outlawed the practice of Child-Marriage. Thus, child marriage is found contradictory with Constitutional provisions. Further, Article 1 of the Convention on Consent to Marriage and Registration of Marriages 1964 calls upon the nations to prohibit the marriage of girls under puberty and set the minimum age of marriage. This is reaffirmed by Article 16(2) of the Convention on the Elimination of Discrimination Against Women. Further, Article 21 of the African Charter on the Rights and Welfare of the Child states that child betrothal and marriage shall be prohibited, and “effective action” shall be taken to ensure that the minimum age for marriage is 18. The “minimum age for marriage is 18” is further reaffirmed by Article 6(b) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

The increasing prevalence of child marriage in Zimbabwe is contradictory with the Nation’s growth and development. Despite having numerous constitutional provisions and International Conventions, the graph of child brides is rising. Government fails to implement these legal provisions effectively. The lacunas in marriage laws are one of the biggest concerns which results into prevailing of the customary laws. The Government must take serious steps to tackle this social evil and ensure justice for all.

Image Courtesy: BBC

Author: Dheeraj Diwakar

08/12/2024 0 comments 33 views

Kerala HC Declares Marital Rape as a Ground for Divorce

by Guest Author 08/12/2024

written by Guest Author

Mehreen Mander

Last week, a Division Bench of the Kerala High Court in Mat. Appeal No. 151 of 2015 held that marital rape is a good ground to claim divorce. The Bench comprising Justice Muhamed Mustaque and Justice Kauser Edappagath dismissed a set of appeals filed by the husband challenging the decision of the Family Court, recognizing that “a husband’s licentious disposition disregarding the autonomy of the wife is marital rape” which amounts as physical and mental cruelty. The appeals were preferred by the husband seeking against a judgment of the Family court granting a divorce on grounds of cruelty. The husband’s petition seeking restitution of conjugal rights had also been dismissed.

Facts

The facts of the case were as follows: The appellant-husband upon failure of a business started subjecting the wife to constant harassment demanding money from her family, and on various occasions the father of the wife has given him approximately 77 lakhs. Further, the respondent had been subjected to physical harassment and sexual perversion. The appellant husband has committed forceful sex on numerous occasions – when she was sick and bedridden, when his mother expired and even in front of their daughter. She had also been subjected to unnatural sex against her will. Further, the husband was in an illicit relationship with the caretaker of the apartment. The family court had granted divorce on grounds of mental and physical cruelty.

Observations of the Court

The Division Bench while rendering its judgment observed that “sex in married life must reflect the intimacy of the spouse”, and in the present case, the sexual perversions the respondent was subject to was in disregard of her wishes and feelings. Further, the Division Bench observed that marital rape is premised on the patriarchal notion of the husband that the wife of the body owes to him. Such a notion, has no place in a modern social jurisprudence which insists on treating the spouses in marriage as equal partners.

The court recognized that “marital privacy” is connected to individual autonomy and any intrusion into this space would diminish this privacy. That a violation of bodily integrity is a violation of individual autonomy, which is protected as a fundamental right. Thus, the court recognized that “treating wife’s body as something owing to husband and committing sexual act against her will” is marital rape which is to be construed as an invasion of marital privacy. The Bench acknowledged that while marital rape is not criminalized in the Indian penal jurisprudence, that by itself does not deter the court from recognizing it as a ground for divorce. Marital rape essentially constitutes physical and mental cruelty, which is a ground for divorce under section 13(1)(i-a) of Hindu Marriage Act,1955 and Section 27 (1) (d) of Special Marriage Act, 1954.

Thus, the appeal was dismissed.

The Position of Law on Marital Rape

The Indian state is one among only 36 countries that refuse to bring marital rape under the purview of penal consequences. Section 375 of the Indian Penal Code, 1860 that defines rape categorically excludes instances of sexual intercourse by a husband with his wife who is aged above 15 years. The age of consent was later raised to eighteen years by the Criminal Amendment Act of 2013. The Supreme Court in Independent Thought v. Union of India also held that a girl child below 18 years of age was incapable of giving consent for sexual intercourse. The courts have however refrained from getting into the question of illegality of marital rape. This implies that adult wives can still be legally raped by their husbands under the current penal law in India.

The Justice Verma Committee set up in the aftermath of the 2012 Nirbhaya case recommended criminalization of marital rape. In 2017, a parliamentary panel set up to consider the Committee’s recommendations observed that criminalizing marital rape would bring the entire family system under great stress. Thus, it has refused to remove the exception in Section 375 which allows the husband to legally rape his major wife. The government has repeatedly insisted the sacrosanct nature of the institution of marriage to justify the exception.

It is pertinent to juxtapose such conceptions of marriage against cases where rapists are asked to marry rape survivors. Recently, while hearing a case against Mohit Subhash Chavan, a public servant who was accused to repeatedly raping a minor girl was asked by former Chief Justice of India SA Bobde if he intended to marry her. This is not an isolated instance. Rapists often marry the survivors to escape penal consequences under the persuasion of village elders or relatives. Judges too are persuaded by the arguments of stigma and honor. In some cases, rapists have deserted the survivor after marriage.

The apex court in judgments like Lillu Rajesh and others v State of Haryana has observed that a women’s supreme honor is “her dignity, honour, reputation and chastity.” That this supreme honor is defiled and degraded by the act of rape and thus renders the victim helpless and unmarriageable, is repeated in many judgments such as Deepak Gulati v. State of Haryana. Courts routinely advise marriage between the rapist and the survivor as a compromise – to save the woman from the resultant stigma and social rejection, and the man from punishment, especially in those cases where the victim has become pregnant.

Conclusion

It is very telling about the Indian jurisprudence that considers marital rape is essential to preserve the sanctity of the institution of marriage on one hand, and makes the rape survivor marry her rapist on the other. The jurisprudence at some level recognizes that a woman must suffer the worst form of degradation and harassment as a part of the regular course of marriage. The cost of preserving the institution of marriage must be the woman’s autonomy, and such cost must be paid by what the court itself recognizes as the worst form of defiling of her “supreme honour.” The only way to contradict this inference is to consider the married woman as the chattel of her husband, which is an understanding grossly violative of the fundamental right of equality.

In light of this, the Kerala High Court judgment becomes important. It recognizes autonomy as a part of privacy which is a fundamental right, and extends it to the private sphere of marriage and household which state has often refused to do. It in fact goes a step further in acknowledging the legal heteronomy and paternalism in the family and divorce laws of the country. Recognising marital rape as grounds for divorce opens the door for many women who suffered without recourse so far.

08/12/2024 0 comments 24 views

Gender Implications of Pre-Nuptial Agreements

by Guest Author 08/12/2024

written by Guest Author

Author: Sayan Dasgupta

The sporadic distribution of persons, identity, culture, language has always been a part of the Indic civilization. This heterogeneity implied a myriad of personal laws; both codified and uncodified. Where such diversity is engrained in the social fabric of India, such diversity could also mean plurality of gendered injustices. Delhi High Court on this note grappled and encouraged the Centre to act on the idea of Uniform Civil Code such that it doesn’t “remain a mere hope”. However, the Courts’ activism is not recent. Kerala HC in Agnes Alias Kunjumol v. Regeena Thomas also highlighted the need for such a legislation for subsistence of marital institution.

The tapestry of Bharat and its consonance with debate of UCC is a stuck gramophone. Where one camp argues for uniformity and homogeneity of personal laws, another camp argues that it would bludgeon religious freedom. However, a fruitful discourse is impossible without a substance of the legislation or a bill to test the veracity of either of those camps. Notwithstanding that, what can be subjected to a litmus test is the Goan Uniform Civil Code which has been lauded by the former Chief Justice of India. The Portuguese Civil Code, 1867 has several peculiarities, gross gendered inequalities, and notions of cis-gendered male heteronormative superiority. To no extent can it be called uniform or civil. Nonetheless, a particular peculiarity that catches attention which is invisible in the Indian jurisprudence of personal laws finds home in the Goan UCC- pre-nuptial agreements.

Pre-nuptial agreements or “Ante-nuptial Conventions” as provided in Section V of the Code are agreements entered into by spouses to stipulate their assets for the purposes of protecting their wealth from the ‘economically inferior’ spouse. The general matrimonial sphere of India finds such agreements as void but may lend an evidentiary status. The Goan UCC contrarily finds such agreements valid as long as they are not in contravention with the Code and are recorded by way of a public deed (Article 1097 of the Code). The ensemble attempts to displace the state law with the contractual terms agreed upon in the event of divorce or dissolution by the death of a spouse. This practice is commonplace in the western legal system. In lieu of such an agreement, there is an obvious waiver of protections ordained by the state laws or customary practices.

The concept of pre-nuptial agreements is not alien to India. One of the first cases recording such a reality was the case of Hamidunnessa Biwi v. Zohiruddin Sheikh, (1890) and Tekait Mon Mohini Jemadai v. Basant Kumar Singh, (1901) where the Courts held agreements were invalid on grounds of public policy. However, there is a contrarian position held in cases like Nawab Khwaja Md. Khan v. Nawab Husaini Begam, (1910) where the Court found such agreements as valid and good in law. Section 40 of the Divorce Act, 1869 which governs the dissolution of Christian marriages requires the Court to look into the existence of any such pre-nuptial agreements. In any case, such validity of the agreement was not accorded to Hindu marriages where marriage isn’t viewed as a contractual relationship, but rather a sacrament. Supreme Court on several occasions has observed that “public policy” does not have an ascertainable form but rather, changes with the change in time. At this juncture, it becomes pertinent if the lens of public policy should change concerning pre-nuptial or post-nuptial agreements.

In the Indian matrimonial context, apart from the predilections of religion, customs, kinship, dowry, and class, the wealth distribution or the wealth gap always favours the man in the relationship putting the female counterpart in the ‘economically inferior’ and precarious position. More often than not, such economic vulnerability of the female counterpart is due to the lack of autonomy in matrimonial relations tinted with patriarchal notions of ‘bread-winners’ and ‘homemakers’ apart from the obvious lack of choices in making life decisions before or after marriage. Institutions of religion or customs do not seem to offer much reprieve either. Kerala HC set such a precedent in Ranjith P.C. v. Asha Nair where it was set that it is reasonable to expect household work and chores from a daughter-in-law.

Given this context parallel to societal import for the importance of marriage, women would always be, evidently, at a more vulnerable position. Since most pre-nuptial agreements are for wealth and asset protection in event of dissolution, they would always be in favour of the ‘economically superior’ spouse. Conventionally, that would be at the expense of the woman. It would always be the husband at a dominant position, given the interpretation to the husband’s position in the family unit; regardless of the financial situation to set the terms of the agreement and forgo the protection of laws and customs set in place. This adversely impacts the social and economic well-being of the woman in the relationship and contributes to financial vulnerability. Furthermore, it would also amplify the magnitude of the unequal distribution on the vectors of gender.

This sense of entitlement can be harkened back to the labour theory of value of Karl Marx. The doctrine simplistically argues that what is created by the labour of the person is to be owned by them due to the input of labour power. This was Marx’s blue-collar notion of work which now cannot be considered sound. What is pertinent herein is the feminist and the moral critique of the proposition which questions the narrow view of what is considered labour, power, and productivity. To analyse this, a divorce case of 1986 in New York can be taken into consideration. A man, who was pursuing his medical studies gets married to a woman in an arranged setting. As a commonly expected practice, the wife was expected to stay at home and take care of the household. While the wife carried out such duties, the husband was able to finish his education and build a successful practice of 14 years. Events occurred which resulted in a divorce. The husband argued that he does not owe anything to his wife considering his practice was built on independent labour power and participation in the market. The Court disagreeing held that the wife contributed value to his practice and thus, had ownership interests in his practice given her participation. The wife’s work was embedded in the successful medical practice. Thusly, she was awarded 40% interest in the medical practice as a divorce settlement.

Devaluation of a woman’s work in the household and entitlement of a man in the family over assets is the oldest, most sexist story of humankind. It is a story sewn so deep into the Indian social fabric that it seems and appears normal. It is the living embodiment of compelled subservience. In a marriage, especially in an Indian context, women are the minority in wealth holding, raising the balance of convenience in favour of men to negotiate and disenfranchise their spouses. Where superficially, it may seem like a move of empowerment, the ground reality screams a different story of exploitation. Sabina Martins, a women’s rights activist observed that “…women across religions being thrown out of their marital homes within months of marriage”. Adjunctively, the waiver of an equitable division of property, or “communion of assets” i.e., equal distribution of property leaves the woman at the mercy of her husband. The Government was recently considering the incorporation of such pre-nuptial agreements into personal laws for women empowerment. Whether such prerogative is right has been answered by the arguments abovementioned. The Courts, as the sole arbiter of truth, with the knowledge of historical injustices and jurisprudence must always consider gender as a variable, especially in the domain of marriage. A supposed reflection that such agreements could offer an ounce of equality is not sufficient cause for reconsideration of “public policy”. The terms of any premarital agreement will always echo the superior bargaining power and resources of the prospective husband.

Biography: Sayan Dasgupta is a 3rd-year law student pursuing a 5-year integrated degree of B.A., LL.B. with corporate honors. He takes a special interest in constitutional law and public policy. and can be reached via mail or at LinkedIn.

08/12/2024 0 comments 23 views

Marital Rape: A Social and Legal Paradox

by Guest Author 08/12/2024

written by Guest Author

By Vandana Bharti

Despite 75 years of independence, the social status of women in India still stands in shadows. Grievous crimes and alarming rates of pending cases portray the loopholes in the legal machinery of the Indian legal system. One such appalling act is that of Rape – where the dignity and self-respect of a woman is bruised beyond contemplation. When such an act occurs behind four-walls in a matrimonial home, it is known as Marital Rape. Where the spouse engages with his/her better half in a forceful, non-consensual sex it is termed as Marital Rape.

A legally sanctioned contract between a man and a woman forms marriage. In India, the legality of sexual intercourse between a man and a woman gives the husband leverage to consider the consent of his wife perpetual in the course of marriage.

Indian Legislation On The Offence Of Rape:

Section 375 of the Indian Penal Code (IPC) states – A man has committed rape if he had sexual intercourse with a woman against her will, without her consent, with her consent but by putting her in danger or threatening her, with her consent whom she believes that she was lawfully wedded to, with her consent but the consent was given in an unconscious state, and with her consent when she is under 15 years of age. Nowhere does this specify the essential elements and the repercussions of committing marital rape.

As per Indian Penal Code, husband can be convicted on grounds of marital rape only when:

The wife is 15 years of age or below; and is punishable by imprisonment for up to 2 years or fine, or both.
When the wife is below 12 years of age, offence punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.
Rape of a judicially separated wife, offence punishable with imprisonment up to 2 years and fine.
Rape of wife of above 15 years in age is not punishable.

Precedents In the Law

In the Harvinder Kaur v. Harmandar Singh case (AIR 1984 Delhi 66 ), the Delhi High Court stated that the interference of the Constitution in household matters would destroy the marriage.

The court stated, “In the privacy of the home and the married life neither Article 21 [No person shall be deprived of his life or personal liberty except according to a procedure established by law] nor Article 14 [The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India] have any place.”

In 2019, while introducing the ‘The Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018’ Shashi Tharoor, Member of Parliament in the Lok Sabha, said, “‘Marital rape is not about sex, but about violence; it is not about marriage, but about lack of consent.”

Naval Rahul Shiralkar, Advocate at High Court of Bombay Judicature at Nagpur, said, “Courts have various methods to identify marital rape and have given strict punishments but due to the lack of a law against a crime like that, the judiciary is bound to not admit ‘forceful intercourse by a man upon his wife’ as marital rape.”

Shiralkar said that many of the marital rape cases went unreported in India. He added, “There are at least 5-6 cases reported every year in Nagpur Family Court which are pending litigation.”

Saranya S. Hegde, President of the Mahila Dakshata Samiti, Bangalore, said that husbands often thought that they could do everything with their wives because society and marital laws supported that. “The helpless and dependent suffer in silence.”

Hegde said, “If a woman goes to a [family] court, the judge often favours the husband and asks the wife to adjust.” In her more than 15 years of experience, Hegde said she had seen women committing suicide due to the mental torture they went through because of marital rapes and domestic violence.

Kamlesh Premi, Counsellor at home at the Centre for Social Research, said the court procedures took almost five or seven years. Having been a counsellor for more than 20 years, Premi said that the judiciary system was too lengthy.

First, the woman has to complain to the Crime against Women Cell and get counselled. Then if she wants, she has to file an FIR (First Information Report) under Section 498 (A) (Husband or relative of husband of a woman subjecting her to cruelty) of the IPC, which in itself is quite a lengthy procedure. And at the end, even after an investment of at least five years and financial resources, the court would either ask her to adjust or maybe get her a divorce with maintenance. Hence, a lot of women compromise or either go for mutual divorce. “Therefore, there is a lot of under-reportage for marital rapes,” she added.

“It is in rare cases that a wife asks for a divorce or maintenance,” Premi said. “The biggest problem is that the husbands treat wives as private property. They think they own her.”

Dr. Ratna Purwar, a gynaecologist in Lucknow, said women often complain about the presence of vaginal or anal wounds in such severity that could substantiate rape. She added that, when men are asked to abstain from forceful sex with their spouse, the most common answer is, “Why did I marry her then?”

The financial dependency of women becomes a prime reason for all the physical and verbal abuse endurance. It had become normal despite the mental health depletion and trauma. Marriages in India have the concept of ‘implicit consent’ to sex and women sadly or happily comply and do not report it.

In the Anuja Kapur vs Union of India Through Secretary case of 2019 (W.P. (C) – 258/2017) , a PIL was filed asking the Delhi High Court to make guidelines and laws on marital rape. The court replied that drafting of the laws was the work of the legislature and not the judiciary. “The court is more concerned with the interpretation of the law rather than the drafting of laws.”

In the Nimeshbhai Bharat Bhai Desai vs. State of Gujrat case of 2018 (2018 SCC OnLine Guj 732), the Gujarat High Court admitted that marital rape was not just a concept and the notion of ‘implied consent’ in marriage should be dropped. The law must protect bodily autonomy of every woman (married or unmarried).

However, in Independent Thought vs Union of India on October 11, 2017, the Supreme Court stated that sexual intercourse with a girl, below 18 years of age, was rape regardless of her marital status.

Supreme Court of India, in the case of Independent Thought v. Union of India (2017) 10 SCC 800, read down Exception 2 to Section 375, IPC as being violative of Article 14 and 21 of Indian Constitution.

In 2017, the Daily reported a 2014 study by International Centre for Research on Women and United Nations Population Fund on 9,500 respondents in seven states of India. The report concluded that 17% of women received spousal violence while 31% (one in three) men admitted to committing sexual violence against their wives.

In 2016, Maneka Gandhi, then minister for child and women development, said that the ‘concept of marital rape’ that was understood internationally could not be applied to India considering the levels of illiteracy and poverty.

In 2016, the U.N. Committee on Elimination of Discrimination Against Women recommended that marital rape be criminalized in India. After that recommendation, a question was raised in the upper house of Parliament asking what action had been taken. Haribhai Parathibhai Chaudhary, then minister of state for home, replied, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament.” This response was repeated literally by Minister Gandhi in the Parliament.

In the year 2015, the RIT Foundation filed a Public Interest Litigation in the Delhi High Court challenging the exemption of marital rape in Section 375 of the IPC. The challenge is on the basis of Article 14, Article 15 (a fundamental right prohibits discrimination by the state against any citizen on grounds ‘only’ of religion, caste, race, sex, and place of birth), Article 19 (freedom of speech which is the right to express one’s opinion freely without any fear through oral/ written/ electronic/ broadcasting/ press), and Article 21 of the Indian constitution.

Justice Verma Committee report (2013) recommended the discarding of the exception of marital rape. Providentially, in November 2017 a division bench of the

The Law Commission of India in its 172nd Report considered the issue of marital rape, but chose to ignore the voices that demanded the deletion of Exception 2 to s. 375 IPC on the ground that “it may lead to excessive interference with marital relationship” and may destroy the institution of marriage.

In the 42^nd report by the Law Commission, it was proposed that criminal liability be attached to the intercourse of a spouse with his/her minor husband/wife. But the committee banished the recommendation stating that the sexual intercourse between a man and a woman can never impose criminal liability on the husband as sex is the parcel in a marriage.

The Supreme Court, while deciding the issue of marital rape of girls below the age of 18 years, made certain observations and comments that are equally applicable and relevant to married women over 18 years of age.

One of the foremost issues is that of the right to bodily integrity and reproductive rights. While referring to various precedents, the Court found that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as under Article 21 of the Constitution. This right, in effect, would include a woman’s right to refuse participation in sexual activity.

The Supreme Court also noted views expressed by the Justice (Retd.) JS Verma Committee, where reference was made to a decision of the European Commission of Human Rights which concluded that a rapist remains a “rapist regardless of his relationship with the victim”.

According to the 2015-16 National Family Health Survey (NFHS-4), 31% of married women have experienced violence – physical or sexual. The NFHS reported that about 4% of women were forced to have sexual intercourse when they did not want to, 2.1% to perform sexual acts they did not want to, and 3% were threatened to perform sexual acts they did not want to.

In 2015, two separate pleas were submitted to the Supreme Court asking for the law to be amended by deleting the marital rape exception. In the first, the petitioner, a 28-year-old, had already filed charges against her husband for domestic violence (a civil, not criminal offense) as well as “cruelty.” She used her maiden name, Reema Gaur, to shield her identity.

She wanted to bring him to justice for repeatedly raping her. “The law as it stands today amounts to a state-sanctioned license granted to the husband to violate the sexual autonomy of his own lawfully wedded wife,” the plea stated.

Appearing on TV, heavily veiled, wearing spectacles that magnified her eyes, Gaur talked about her marriage. “Every night post the wedding was a nightmare for me. … He would never even ask my permission,” she said. “He used to beat me up, insert artificial [objects] in me. At some point I was in such a condition I was not even able to walk,” she said, her voice breaking with tears. On the night she decided to leave, she said, “He hit me 18 times on my head with a box and a torchlight. And then he inserted the torchlight in my vagina.“

Bleeding and in a semiconscious state, she called her mother for rescue. The bleeding lasted for two months. In the year she was married, when Gaur tried to talk to her in-laws and her parents, “The only thing they told me is, ‘Try to adjust.’ “

In 2014, Akash Gupta of the Rice Institute, a non-profit organisation reported, that the number of spousal violence received by the wives was 40 times more than that received by non-intimate partners.

Deepika Narayan Bharadwaj, a film maker and activist believe the state does not have the potency to support women if they are to seek divorce on grounds of marital rape. “It’s naive to say women have complete right of consent and rights over their body, when the truth is they’re dependent on their husbands for everything, financially, emotionally,” says Bhardwaj.

Trisha Shetty, founder of She Says, a website for information and action on sexual crimes against women argues that protection from Marital Rape is not a western issue that needs solving rather it is a basic human right. People in India are of the opinion that sexual abuse and marital rape only happens to the poor, the fallacy needs to be broken. “That whole assumption that you’re making laws for people who don’t understand is nonsense. Everyone understands the concept of consent, of saying, ‘No.’” says Trisha.

She Says and several NGOs, including Jagori (which in Hindi means “awaken, women!”), have organized workshops and other programs to help women speak out about the sexual abuse and rape. Online, there are additional resources, such as this Marathi language effort to educate about consent via two folk dancers having a musical discussion about the meaning of “yes” and “no.” The government has even set up an emergency hotline, staffed by women, to field calls from women who need police assistance as well as resources and instruction about their rights. In their first year, they received more than 600,000 calls from women, some describing assault and rape within their marriage.

Judicial Stand

In Bhodhisathwa Gautam v Subhra Chakraborthy (1996 AIR 922) it was held that marital rape is violative of Article 21; Right to live with human dignity. Supreme Court held that Rape is a crime against basic human rights and is also violative of victim’s most cherished of the fundamental right. A married woman too has the right to live in human dignity, right to privacy and rights over her own body. Marriage can in no way take away these rights.

In Justice K.S Puttaswamy v Union of India (2017) 10 SCC 1 , it was held that the right to privacy as a fundamental right includes decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.

Uncovering the history of judicial decisions on infliction of serious injury by the husband on the wife the court in Queen Empress v Haree Mythee, (1891) ILR 18 Cal 49 observed that in case of married women, the law of rape does not apply between a couple after the age of the wife over 15 years of age, even if the wife is over the age of 15, the husband has no right to disdain her physical safety.

In Emperor v Shahu Mehrab (1911) ILR 38 Cal 96 the husband was convicted under Section 304A IPC for causing the death of his child-wife by rash or negligent act of sexual intercourse with her.

In State of Maharashtra v Madhukar Narayan Mardikar, AIR 1991 SC 207, Supreme Court referred to the right to privacy over one’s body. It was decided that a prostitute had the right to refuse sexual intercourse. It is wistful to know that all sexual offences committed by a non-intimate or a stranger have been penalised and all females except wives have been granted their right over their bodies.

In Sree Kumar v Pearly Karun, 1999 (2) ALT Cri 77 High Court observed that because the wife is living under the same roof with that of her husband, with no decree of separation, even if she is subjected to consensual or non-consensual sexual intercourse, the offence under Section 376A of IPC will not be imposed.

The idea of spousal rape is fictious to the Indian Judiciary, despite the mental and physical trauma of the survivor.

International Statistics

Marital Rape has been declared illegal and a criminal offence in 18 American states, 3 Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. A U.K. case of R v R changed the law to an extent that the courts ruled that even within a marriage, any non-consensual sexual activity is rape.

What can be done?

To help the victim surf the trauma, shelters can be provided as a temporary safe place to stay and the staff may help in the consideration of options available, legal aid services to offer free of cost legal services and advice, support groups to help the victim voice the upheaval. Articulate support for the enforcement of apt laws and for new legislation to curb sexual violence, education programmes and support initiatives at local, state and national level.

Conclusion:

The incessant exemption of marital rape from the ambit of criminal law succours the idea of wife being the property of the husband exclusively. Changing the laws on sexual offences needs to be tactful especially in a country like India where there is an existence of diverse and conglomerate personal and religious laws that might clash with the new amendments in the statutory criminal law. The immediate need of prohibiting and criminalizing marital rape is just not enough. Sensitization of judiciary and police along with educating the myriad believers of the airy concept of marital rape is required in order to acknowledge that the concept of spousal rape; getting raped by one’s spouse is not trivial, and definitely cannot go unpunished.

08/12/2024 0 comments 27 views

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