TW: Description of systemic misogyny and aphobia, mention of sexual assault/rape
On Wednesday, May 11, a 2-Judge bench at the Delhi High Court delivered a split verdict on the matter of marital rape in India. While Justice J. Shakdher recognised the validity of the concerns of the petitioner, Justice Harishanker had a diametrically opposite viewpoint.
“Legitimate expectation of sex an inexorable incident of relationship between husband and wife, which distinguishes it from other relationships”, said Justice C Hari Shankar of the Delhi High Court to justify the exception of marital rape in the Indian Penal Code. upholding the marital rape exception in the Indian Penal Code.
His comments have generated a lot of harsh criticism on social media. This statement has long standing consequences, not just for the cis-women in the country but also for the queer community. Specifically, for those who fall under the ace-spectrum. The statement works to normalise the idea of sex as a necessity, that is satisfied through marriage. This idea then leads to the institutionalization of consent within the structure of marriage. This situation reflects on the law-makers lack of information about sexuality and sex and who has it and who doesn’t.
Read More: The Mystery of Asexuals and Aromantics
This view however is not new. The Indian Judiciary and the Legal System has for the longest time assumed sex to be an integral part of a marriage. Earlier, cases of refusal or absence of sex have been noted as cruelty by various courts of the Indian Judiciary. “It is sad but this is just one of the many ways that allonormativity presents itself. Personally, I don’t even entertain the thought of a casual relationship where there is an “expectation” of sex, to entertain something like that seriously in a marriage is out of question,” said Priya Thakur, an asexual woman and a photographer.
This argument has been brought-up time and again in the Indian Queer Rights Movement. The structure of an Indian Marriage, presently is fundamentally incompatible with asexual identities as well as consent culture.
Another demisexual person, Sunny (*name changed) noted: “What this (sort of) judgement does is introduce an idea of communitarian consent for sex in a marriage. By that I mean, it assumes that everybody needs sex and marriage is the one-stop solution to it. In doing that it excludes people like me — people for whom consent is highly conditional and need for sex doesn’t always exist — out of the conversation.”
For many asexual people, romantic relationships are already a source of huge anxiety. The dating and courtship scene are tailored to fit allosexual people only, due to which several fresh conversations about sex and sexuality become the burden of the ace person in the dynamic. Judgements like these not only set back the conversations around consent culture, but also contribute to making romantic spaces even more unsafe for various marginalized communities. This is done by ignoring the power dynamic in any such relationship, and the need to navigate it consensually and safely.
On the other hand, Justice Shakdher, in his verdict, spoke in agreement with the submissions made by the lawyers representing Men Welfare Trust and Hridaya: “The law (on these matters) should be gender-neutral. The Executive may have to provide sentencing guidelines for all trial court judges to ensure greater consistency.”
He also urged the Legislature and Executive arms of the government to keep this in mind when revisiting the rape laws in the country. “These are the next steps in the matter which the legislature has to take up. The court’s jurisdiction to examine the matter is not tied-in with these steps that the legislature may embark upon concerning sentencing and how investigation is to progress in matters involving marital rape,” he said, acknowledging that these matters were not within the ambit of the Court’s powers. Justice Shakdher said this in response to the gender-specific treatment of sexual misdemeanours requested by petitioners in their submissions.