Judiciary superior, India: important verdicts

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Divorce, custody, marital rape, family benefits

Renuka Bisht, Oct 8, 2022: The Times of India

What is marriage? What is family? They are institutions with almost universal participation but hardly a universal experience. But when they land up in the courts, our justices seem partial to some very archaic notions about marriage and family – steeped in hidebound moralities at odds with the great diversity of modern marriages and families. A much more constitutional message would be that alongside the right to choose their partner every adult citizen has the right to live this partnership per their own consensual desires.

Here are some of this year’s strikingly strange observations from benches around the country, and a couple of examples that show how powerful judges can be when they speak for individual liberties.

1) Madras HC has said in a custody case:
“The concept of marriage is not for mere satisfying (sic) the carnal pleasure, but it is mainly for the purpose of progeneration. ”

The haranguing has a quasi-religious timbre. Why shame married couples who give primacy to their sexual relationship or who choose not to have children? Why judge all marriages via one single concept of marriage? Such moral policing alienates swathes of the citizenry who fall outside its cramped lakshman rekha.

2) Kerala HC has said in a divorce case:

“The consumer culture of ‘use and throw’ seems to have infl uenced our also. ” It decried the younger generation for thinking “that marriage is an evil that could be avoided to enjoy free lifewithout any liabilities or obligations. They would expand the word WIFE as Worry Invited For Ever, substituting the old concept of Wise Investment For Ever. ”

NSO data does indicate that between 2011-19 the unmarried in the 15-29 age 20. 8% to 26. 1% of the male population and from 13. 5% to 19. 9% of the female population. But while economic and other material factors contributing to this trend are well documented, the theory of young people staying unmarried because they think “marriage is an evil” is a dubious new invention. 
This apart, the court’s usage of the WIFE acronym does injury to all those who are already hurting from the endless cracking of sexist jokes against wives.

3) Karnataka HC has said in a kidnapping case:
“According to Manusmruthi, no person can repay his parents even in 100 years for all the troubles that they go through to give birth to him/her and raise him/her to adulthood. Therefore, always try to do whatever pleases your parents and your teacher, because only then will any religious worship done by you bear some fruit. ”

The larger picture here is that the court is telling a young couple that they have hurt their parents by eloping, but that’s not equal to breaking a law, so they will be permitted to stay together.

Indeed,the court acknowledges that individuals’ autonomy to determine their own partners is “well settled”. But, but, but… then what was the point of chastising them? Needless sermonising, especially to young people, adds reams to judgments and wastes court time.

4) Delhi HC delivered a split verdict on whether marital rape should be criminalised. Justice C Hari Shankar wrote:

“An act of non-consensual sex, as committed by a complete stranger, cannot be equated with an act of non-consensual sex by a husband. ”
This manufactured distinction echoes the way in which Supreme Court in 2013 set aside the Delhi HC verdict decriminalising gay sex: “Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes. ”

By 2018 SC found the distinction untenable, struck down Section 377, and said that “the veil of social morality cannot be used to violate fundamental rights. ” Now thequestion is, when will the misogynist veil for marital rape be struck down similarly?

Justice Rajiv Shakdher, in favour of criminalising marital rape, shows how courts can reform societies: “When marriage is a tyranny, the state cannot have a plausible legitimate interest in saving it. In every sense, the marital rape equality clause contained in Article 14 of the Constitution. With one stroke it deprives nearly one-half of the population of equal protection of the laws. ”

The judge rejects the idea that marriage carves out a special space for non-consensual sex, and further emphasises that “it is incumbent on courts to take decisions concerning complex social issues and not dribble past them, as that is the mandate of the Constitution. ”

5) Supreme Court has said in a case about family benefits:

“Familial relationships may take the form of domestic, unmarried partnerships or queer relationships… These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. . . ” The sense of being seen and respected that this judgment offers to atypical families is rare, and all the more welcome for it. 
 6) Last week, an SC bench led by Justice DY Chandrachud for the first time recognised ‘marital rape’ 
of a woman who wants to abort an unwanted child conceived out of forced sex with her husband.

The bench held that this comes under the ambit of “survivors of sexual assault or rape or incest”. “We would be remiss in not recognising that intimate partner violence 
 is the reality and can take the form of rape. The misconception that strangers are exclusively or almost exclusively responsible for sex and gender-based violence is a deeply regrettable one. Sex and gender-based violence in all its form in the context of family has long formed a part of the lived experiences of women,” the bench said.

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