Marriage most pristine institution of mankind, not gladiatorial arena: Justice C Hari Shankar

Introducing the possibility of a husband being regarded as his spouses rapist will be completely antithetical to the institution of marriage which is the most pristine institution of mankind, and on which rests the entire bedrock of society, Justice C Hari Shankar said Wednesday in his dissent verdict on criminalising marital rape.


PTI | New Delhi | Updated: 11-05-2022 23:29 IST | Created: 11-05-2022 23:29 IST
Marriage most pristine institution of mankind, not gladiatorial arena: Justice C Hari Shankar
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Introducing the possibility of a husband being regarded as his spouse's rapist will be completely antithetical to the institution of marriage which is the most pristine institution of mankind, and on which rests the entire bedrock of society, Justice C Hari Shankar said Wednesday in his dissent verdict on criminalising marital rape. Justice Shankar said that in this relationship of marriage, which has a unique character and complexity, the legislature has advisedly felt that allegation of "rape" has no place and ''a legislation that seeks to keep out, from the parameters of such a relationship, any allegation of rape, in my view, is completely immune to interference''.

In his 200-page verdict, Justice Shankar agreed with the counsel for the petitioners that there can be no compromise on sexual autonomy of women, or the right of a woman to sexual and reproductive choice. ''Nor is a husband entitled, as of right, to have sex with his wife, against her will or consent. Conjugal rights, as counsel for the petitioners correctly assert, end where bodily autonomy begins. No court can, in this day and age, lend its imprimatur to any theory of a husband, by reason of marriage, being entitled, as a matter of right, to engage in sexual relations with his wife, at his will and pleasure. Sexual activities between man and woman, within or outside marriage, require, in legalspeak, consensus ad idem,'' he said.

Justice Shankar differed with the submission of the counsel for the petitioners and the amicus curiae the only logical consequence of grant of complete sexual autonomy to a woman, whether a wife or not, is outlawing of the exception in the law.

"I am firmly of the view that, in thus treating sexual acts between a husband and wife, whether consensual or non-consensual, differently from non-consensual sexual acts between a man and woman not bound to each other by marriage, the legislature cannot be said to have acted unconstitutionally. The distinction in my view, is founded on an intelligible differentia having a rational nexus to the object sought to be achieved by the impugned exception, which fulfils not only a legal but also a laudatory object, and does not compromise any fundamental rights guaranteed by Part III of the Constitution," he said.

Justice Shankar said the foundation of the petitioners' case is fundamentally flimsy and a castle cannot be built on reeds.

"Marriage is neither a playground, nor a gladiatorial arena. It is the most pristine institution of mankind, on which the entire bedrock of society rests. The importance of marriage, and the relationship between a husband and wife joined in holy matrimony – Mr Rao's (amicus curiae) submission that marriage is no longer considered sacred in law being, to my mind, completely unacceptable – cannot be undermined," he said.

He said if the petitioners' submissions are accepted then the daughter born of such an act would be a product of rape and even though the child has been born out of wedlock and out of a perfectly legitimate sexual act between her parents, she would be the child of a rapist because her mother was, on the occasion when she had sex with her father, been unwilling.

Her father, as a rapist, would be liable to suffer the punishment stipulated in Section 376, were her mother to prosecute, he said, and added that the exception results in no prejudice, at all, to the fundamental rights of wives.

He, however, said marriage, unquestionably, does not entitle a husband to coerce his wife into sex, if she is not inclined and the exception does not, however, either expressly or by necessary implication confer an entitlement on the husband to insist on sex with his wife against her willingness or consent.

Justice Shankar said if the wife refuses and the husband, nonetheless, has sex with her, howsoever one may disapprove the act, it cannot be equated with the act of ravishing by a stranger and even the impact on the wife in such a situation cannot be equated with the impact of a woman who is raped by a stranger.

He said there is an intelligible differentia between sexual acts committed within the confines of marriage, vis-à-vis that between strangers and this differentia does not stand diluted merely because the act is non-consensual.

"At the highest, all that the court can do in such a situation, is to recommend, to the legislature, to take a view in the matter, setting out what, in the perception of the court, is the right approach. The legislature would not be bound to agree with the Court, or to follow the view suggested, for the simple reason that the legislature is a microcosm of the 130 crores that constitute the populace of the country, and represents their collective will and wisdom," Justice Shankar said.

The effect of designating an act as a criminal offence, on all who may commit that act, cannot be forgotten and for that reason, extensive consultation with all stakeholders, especially given the fact that India is a country of diverse cultures, religions, beliefs and social and societal realities, is absolutely necessary, he said, adding, "We cannot undertake that exercise, and our oath does not authorise us to do so, either." He also said it is not open to any court in India to strike down the legislative provision as unconstitutional merely so as to conform to what, according to the petitioners, may be the international sentiment.

(This story has not been edited by Devdiscourse staff and is auto-generated from a syndicated feed.)

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