What Do Judges in India Think About Marital Sex?

Despite a sensitive understanding of marital sexuality, the judicial discourse on the subject does not involve any mention of consent. This article also highlights four approaches taken by judges towards marital sexualityseeing sex within marriage as a norm, a pragmatic approach valuing it for its health consequences, a formalist approach of attaching a formal legal function to it, and a moral panic approach warning against attaching legal relevance to sexual dissatisfaction as a criterion for ending marriage.

The Delhi High Court is currently hearing a constitutional challenge to a clause in the Indian Penal Code (IPC) that exempts a man from the charge of rape if the victim happens to be his wife. The said clause, which appears in the IPC as Exception 2 to Section 375 (which defines the offence of rape) states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 

The petitioners’ claim centres on women’s right to sexual autonomy and protection of bodily integrity irrespective of marital status, which they derive from different articles in the Indian Constitution. Strangely enough, the central government, instead of arguing whether women have such rights under the Constitution or not, has opposed the petition on a number of peripheral grounds. Predictably, it has argued that recognising marital rape might “destabilise the institution of marriage apart from being an easy tool for harassing the husbands” (RIT Foundation v Union of India 2017) and that it would give primacy to the wife’s account in determining whether the alleged rape took place or not. It does not bother the government that currently, the law gives primacy to the husband. The government has also taken the absurd position that repealing the above clause would not serve any purpose, since it will not prevent husbands from raping their wives, nor will it make a difference to the attitudes of the police, prosecutors, judges and the patriarchal society at large.

If anything, the stance of the government in this case only goes to confirm that women’s claim to liberal individualism underlying the Constitution still has to contend with other extraneous considerations, before it can be debated on its own terms. In addition to the competing interpretations of constitutional provisions, the outcome of this case might depend to a large extent on how the two judges hearing the petition view these other issues, including, “the institution of marriage,” and sexual rights and wrongs within marriage. This is something that feminists have acutely been aware of. 

Indeed, what do judges in India think about marital sexuality? Family law judgments in India are replete with discussions on the nature of marital sexuality, leading Patricia Uberoi (1997: 185) to use the term “judicial ethnosexology” to describe the set of cultural ideas about sexuality that judges invoke to resolve legal questions around marriage. 

Consummation as Performative Sex

Indeed, sexual intercourse is central to the legal understanding of marriage, starting with the status-defining act of consummation. Heather Brook (2007: 54) argues that consummation is the “corporeal yoke” that links marriage to the law as “performative sex,” in the sense that the first instance of sexual intercourse is not merely a sexual act, but one that conveys that the marriage is confirmed and finalised, much like the handshake signalling the finalising of a business deal. Continuance of sexual relationship with the spouse (the absence of which may lead to a finding of cruelty), avoiding sex outside marriage (adultery), and forgiving errant behaviour of the spouse by having sexual intercourse (condonation) are all examples of performative sexual acts that constitute the marriage in law. As Brook (2007: 72) notes, the “conjugal union is established and reestablished through repeated sexual performatives whose model is consummation.” It is not surprising then that the absence of consummation frequently emerges as the centrepiece of litigants’ narratives and judicial findings of a spouse’s unfitness for marriage, even as it elides the question of consent in marital sex. 

This formalist account of sexual intercourse in the law of marriage is supplemented by the judges’ ideas and opinions about marital sexuality. Thus, examining a set of judgments under the Hindu Marriage Act, Uberoi finds that judicial discourse,

… justifies the legal requirement of consummation to establish the validity of Hindu marriage by recourse to naturalistic explanations of the physical and emotional effects of the act of consummation (or, to put it another way, of the woman’s forfeiture of her virginity) in cementing the conjugal bond. It also endorses procreation as the primary aim of sexuality and of marriage, though judges often candidly acknowledge that this is not, strictly speaking, the legal position. (1997: 185)

“Judicial Ethnosexology” in Divorce Law

Keeping aside the judicial construction of sexuality in the questions of legal validity of marriage covered by Uberoi, in this article, I explore the “judicial ethnosexology” in the area of divorce. “Cruelty” being a ground for divorce under every personal law and the secular law,[1] we frequently come across cases where one party alleges the other’s refusal to have sex as wilful infliction of mental cruelty, and seeks divorce on that basis. Occasionally, we also encounter cases where wives allege forced sex or excessive demand for sex by husbands as physical or mental cruelty, to seek divorce. The terms cruelty or mental cruelty are not defined in the law. As a result, whether a person’s conduct amounts to cruelty or not, depends on the judges’ understanding of what is tolerable and what is not in marriage. Despite this wide space available for divergent views, we find judges consistently agreeing that absence of sex in marriage is intolerable  and is a good reason for ending the marriage, though their reasons for doing so differ. 

As opposed to the other areas of family law, where we commonly encounter judges demonstrating different role expectations from husbands and wives, on this issue, we find judges holding both up to the same standard. What is more, we often find judges acknowledging and even affirming the wives’ sexual desire, without conflating it with desire for motherhood. For instance, in Jyotish Guha v Meera Guha (1970), two judges of the Calcutta High Court wrote: “Though the wife was keen for the husband’s company, the husband kept her away on pretexts. This indicates the husband’s utter callousness and indifference to the wife”(Para 29). Consider the Delhi High Court judgment Rita Nijhawan v Balakishan Nijhawan (1973), where a woman who was married at sixteen, sought divorce after nearly two decades of an unsatisfactory sex life and the husband’s inability to achieve an erection. Acknowledging that the condition was beyond the husband’s control and that he tried his best to satisfy the wife, Justice Rajinder Sachar wrote: 

“but the fact nevertheless remains that because of his inherent physical weakness he is not able to have proper sexual relations with the [wife]; the result being that every time, the marriage bed, instead of being a source of pleasure and fulfillment, becomes a source of misery and frustration to the [wife].” (Rita Nijhawan v Balakishan Nijhawan 1973: Para 18)

Later in the same judgment, he notes, 

“In these days it would be [an] unthinkable proposition to suggest that the wife is not an active participant in sexual life and therefore, the sexual weakness of the husband which denied normal sexual pleasure to the wife is of no consequence and therefore, cannot amount to cruelty.” (Para 22) 

How Judges Think About Marital Sexuality: Four Approaches

Most judges take the relevance of sex and sexual satisfaction to marriage to be self-evident, or to use the term preferred by them, “normal.” Take for instance, the widely-quoted line from Justice Leila Seth’s 1981 Delhi High Court judgment, Shakuntla Kumari v Om Prakash Ghai: “a normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage” (Para 25).  Or Justice Kailash Gambhir’s assertion in the 2012 judgment, Shashi Bala v Rajiv Arora, that, “indisputably, there has to be a healthy sexual relationship between a normal couple” (emphasis mine), though he maintained that it was difficult to define the “normal.” There are also instances, such as the 1979 Karnataka High Court judgment, Srikant Rangacharya Adya v Anuradha, where the judge regarded sex to be at once a “natural instinct,” as well as a “matrimonial obligation” towards the spouse.

In other cases, judges venture to give detailed reasons for attaching relevance to sex. Here, in some cases, we find judges going back to the formalist understanding of consummation discussed earlier. This view holds that sex is important because it is through sexual intercourse that the legal consequence of marriage is achieved; first through consummation and thereafter through repeated performance of the same act throughout marriage. Thus, in Shashi Bala v Rajiv Arora (2012), Justice Gambhir noted:

“‘That the twain shall become one flesh, so that they are no more twain but one’ is the real purpose of marriage and sexual intercourse is a means, and an integral one of achieving this oneness in marriage.” (Para 12) 

This fundamental, determinative character of marital sex, is what accords it the status of a “matrimonial obligation.” In another 2012 Delhi High Court judgment, Rajeev Chadha v Shama Chadha, Justice Gambhir held that though the husband’s preference of a working woman for a wife was a valid one, he was in the wrong in refusing to have sex with her unless she produced proof of employment, since, “to put a pre-condition for discharging one of the most vital matrimonial obligations is baffling and unfathomable to say the least” (Para 18).  He continued:

 
“The inane pre-condition put forth by the husband in the present case unfortunately has given matrimony a hue of being a barter system rather than a pious, sacred union of two bodies and souls.” (Rajeev Chadha v Shama Chadha 2012: Para 19) 

This understanding of marital sex performing a higher objective helps explain why Justice Gyanendra Kumar wrote in a 1964 Allahabad High Court judgment, Avinash Srivastava v Chandra Mohini, that wilfully depriving a spouse of cohabitation (meaning sex) amounts to mental as well as “moral cruelty.” 

Alongside the formalist approach, we find a pragmatic approach in some judgments. In the Nijhawan case referred to earlier, Justice Sachar dwelled on the health benefits of sex for women: 

“… sexual activity in marriage has an extremely favorable influence on a woman’s mind and body. The result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious, vivifies woman’s brain, develops her character and trebles her vitality.” (Para 22)

Similarly, two judges of the Rajasthan High Court in the 2016 judgment, Ankit Bhargava v Neera Sharma, listed the health benefits of sex for both men and women: 

“improved immunity, heart health, lower blood pressure, improved sleep, stress relief, improved bladder control in women all but contribute to the quality of life, the absence of which may well lead to depression and a feeling of lowered self-esteem and dejection ultimately affecting the health and quality of life.”

There is also the moral panic approach which warns us against attaching too much legal relevance to sexual dissatisfaction in deciding whether a marriage should be ended or not. While Justice Sachar in the Nijhawan case considered sexual satisfaction as a criterion to determine mental cruelty, Justice Bhaskar Bhattacharya of the Calcutta High Court warns us against precisely that in a 2009 judgment. In Braja Gopal Bag v Sharmistha Bag, dismissing the husband’s grievance, Justice Bhattacharya notes that when the law looks at marital sex for the determination of a claim of cruelty, it is concerned with “normal sexual intercourse,” and not “the vigorousness of the sexual activity expected by him from his wife.” The judge reasoned that if sexual dissatisfaction were allowed as mental cruelty, 

“… the effect will be disastrous and the peace and security of the life of the individual and the society in general, which is the object of marriage, would be totally frustrated. The matrimonial courts will be flooded with frivolous divorce petitions of the unfaithful spouses on the allegation that their counterparts are unable to give them the expected satisfaction. Unbridled sexual urge, it is said, is like the voracity of the fire, and is unquenchable.”

He noted that it is this all-consuming, unruly fire, which the Hindu Marriage Act (under which the parties were married) sought to contain through monogamy. Allowing sexual dissatisfaction to be the reason for ending a marriage would undermine that disciplining purpose of the law. Justice Bhattacharya therefore held that divorce law should be concerned with the objective question of non-existence of sex in marriage, and not the subjective question of sexual dissatisfaction.

Conclusion

As this brief survey of judicial decisions shows, there are multiple ways in which judges approach marital sexuality. While some judges see sex within marriage as a norm, others value it for its health consequences, and still others attach a formal legal function to it. The occasional expression of anxiety over sexual desire leading to civilisational crisis notwithstanding, most judges adopt a moderately affirmative attitude towards sex, that deems it necessary for the pursuit of (marital) happiness. At the same time, in holding that deliberately avoiding sex with a spouse amounts to “cruelty” and has legal consequences, there is an acknowledgment that sexuality is a site of power, especially in a relationship of emotional and economic dependency like marriage, and that power does not always show up as brute force. Despite this sensitive understanding of marital sexuality, the judicial discourse on the subject does not involve any mention of consent. While judges affirm a normal and healthy sexual relationship in marriage, we hardly encounter consent as an ingredient of such “normal and healthy” sexual relationship. 

The absence of any discussion on consent is even more stark in the small number of cases where wives allege forced sex as cruelty to seek divorce. A rare exception to this trend is a 1965 Allahabad High Court judgment by Justice M H Beg, who later became the Chief Justice of India, courting much controversy. In Kusum Lata v Kamta Prasad (1965), the wife sought judicial separation on the ground of cruelty. Among other allegations, she claimed that the husband’s insistence on sex against her wishes on certain occasions constituted cruelty. Her petition was however dismissed by the trial court, and on appeal, by the district court too. Setting aside the district court’s verdict, Justice Beg wrote:

“The lower appellate court has, very lightly, dismissed this matter by observing that all young and newly married husbands are liable to indulge in sexual relations with their wives rather excessively. The lower appellate court also observed that, after reading the evidence, it appeared that the appellant (wife) wanted to dictate to her husband the time when he should have sexual relations with her. It appears to me that the approach of the lower appellate court towards the whole subject of relations between a husband and wife is completely out of tune with the times and in conflict with the ideas underlying the concept of cruelty (…). That concept appears to me to be one which is based on mutual regard and consideration by each spouse for the other. It excludes, in my opinion, selfish brutality or disregard for the health, needs, desires, and feelings of the other by either spouse even in a matter such as sexual relations between the two.” (Para 27)

From the point of legal relevance, this judgment has few takers at present. It is a single judge decision, interpreting the old definition of cruelty; the definition was amended and “liberalised” in 1976. Even when legal commentaries mention this decision, it is for technical points of law. In view of the legal battle taking place before the Delhi High Court over the marital rape exemption, which also represents an ideological battle that feminists have been engaged in for years, this 50-year old judgment is of immense relevance and the ideas animating the above excerpt must be revived in the judicial discourse on marital sexuality.

Cases Cited:

Ankit Bhargava v Neera Sharma (2016): Civil Miscellaneous Appeal No 1279 of 2014. 
Avinash Srivastava v Chandra Mohini (1964): AIR, Alld, p 486.
Braja Gopal Bag v Sharmistha Bag (2009): AIR, Cal, p 226.
Jyotish Guha v Meera Guha (1970): AIR, Cal, p 266.
Kusum Lata v Kamta Prasad (1965): AIR, Alld, p 280.
Rajeev Chadha v Shama Chadha (2012): Delhi Reported Judgments, 130, p 20.
Rita Nijhawan v Balakishan Nijhawan (1973): AIR, Del, p 200.
RIT Foundation v Union of India (2017): Brief Submission on Behalf of Union of India before the High Court of Delhi, Writ Petition No 284 of 2015.
Shakuntla Kumari v Om Prakash Ghai (1983): AIR, Del, p 53.
Shashi Bala v Rajiv Arora (2012): Delhi Law Times, 188, p 1.
Srikant Rangacharya Adya v Anuradha (1980): AIR, Kar, p 8.

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