Indian courts of law and the state must view marriage through a democratic lens

Shy smile of a bride in a Hindu wedding by kunjan detroja

Far from being a union between consenting adults, events in courtrooms in India are showing an ugly view of marriage. From being used to justify homophobia, to being a solution to help rapists evade justice, suggested by no less than the Chief Justice of India! Can marriage be applied retrospectively as some kind of an ex-post-facto sanction for child rape? What in the name of dystopia is this?

A bizarre concept of “legitimate state interest” in heteronormativity

The Delhi High Court was hearing petitions for the registration of homosexual marriages under the Hindu Marriage Act, Special Marriage Act and the Foreign Marriage Act. The Government of India made its submissions opposing the same. claiming that such marriages were against the Indian ethos, and went ahead to make several troubling statements. I would like to address some of the noteworthy quotes here.

Marriages are age-old customs, rituals, practices, cultural ethos and societal values

Everything is age-old customs, rituals, practices, cultural ethos and societal values. Humans are born from other humans and inherit a lot of practices and norms from them. Some age-old customs, rituals, practices, cultural ethos and societal values in India, in the past have included child marriages and sati. Both are now illegal. In the present, we are still fighting the caste system. Cannabis, Lord Shiva’s “booti” (herb), is illegal in India. A practice being age-old does not necessarily mean it is appropriate or that it cannot be altered. The state conceals its homophobia behind such words. The state does not have a duty toward rituals, but the people, and homosexuals too are citizens and the state has a duty to fulfill its obligations toward their well being, which includes their right to marry as per their wishes.

The Indian family as that of a husband, wife and children, and a solemn institution between a biological man and a biological woman.

Actually, this is a great example of how age-old values change to be appropriate with the times, because the age-old Indian family would definitely frown on this nuclear family model of husband, wife and children living independently of the husband’s parents, because traditionally, the daughter-in-law is seen as a source of care for aging parents. A woman who encouraged her husband to live independently of parents was generally frowned on. Even as families are increasingly nuclear now-a-days, the duty the daughter-in-law is socially expected to provide to the parents of the groom remains a point of judgment in society. Yet the government makes no effort to prevent this practice and appears to consider it as an original Indian custom!

Indeed, even today in villages in India, the family is more of an extended family with the wife often living in the village with the in-laws while the husband goes off to the city to seek work or may be posted in the army and so on. In essence, the wife is living with people she is not related to at all, the husband is in another location altogether and yet it is a family.

Same-sex marriage is not codified under any statutory laws or uncodified personal laws

So what? Rituals customarily limited by sex like last rites at Hindu funerals are not codified in any law either and yet women do it or don’t do it as they wish. It is not the business of the law whether the daughter lights a father’s pyre or a son, regardless of whether religion approves of it traditionally or not. Anything not expressly prohibited generally falls under individual freedoms in a democracy. More than same-sex marriage not being codified in statutory laws or uncodified personal laws, it is important to see that the laws are worded so that it is not prohibited.

We are talking of three laws here. The Hindu Marriage Act, the Special Marriage Act, and the Foreign Marriage Act. In the wording of three different Acts, there isn’t a single place where same-sex marriages are prohibited. This cannot be an accident. If the laws were against homosexual marriages, they would have prohibited them. Or the wording would have implied so. Even as all three laws specify the minimum age of brides and grooms, they do not mention that there must be one groom and one bride. Male, female. Heterosexual. And yet, we have citizens having to plead before courts to marry people they love, because the government does not respect the laws of the country and chooses to interpret them narrowly in a manner that denies citizens their rights.

Sooner or later it will become a matter of national embarrassment before the world as India’s reputation is paraded yet again for regressive, anti-human rights practices. Is this necessary? Citizens are homosexual. That is not going to change. Is there a need to make an embarrassment of the country with a spectacle of opposing their rights? Have we learned nothing from banning child marriages and widow burning in Sati? Regardless of the preferences of the orthodoxy, humans as a whole move toward greater freedoms and rights.

The light of history does not fall kindly on those who killed their daughters in the name of tradition or sent them to sexual exploitation before they were old enough. Those were traditions. Traditions that were not fair to those whose rights they trampled. They died their overdue deaths, just as state sanctioned homophobia will. It is to the benefit of everyone that dignity be maintained rather than this be an inevitable denouncing of Indian traditions because the government was too short-sighted to evolve with time.

It is not the purview of courts to legalize same-sex marriage

I admit I am not a lawyer, but the laws aren’t saying that same sex marriages are illegal, so the court would be well within its rights if citizens are denied their rights due to extra-legal prejudice that prevents homosexuals from marrying. The government didn’t actually prove that the marriages were illegal, did it? Age-old traditions are not the same as laws of a country.

But to be even more blunt, it is a denial of basic human right. Any entity that endorses it is in the right. One that doesn’t is in the wrong.

Chief Justice of the Supreme Court, Sharad A Bobde asked a man who repeatedly raped a girl when she was a minor if he would marry her.

I have a great respect for the sexuality of minors and have in the past argued that laws against child rape not considering the consent of a child, simply because of legal age may not be fair in every circumstance. Particularly when their consensual sexual partner is close to them in age or the relationship has otherwise been beneficial to both and without coercion.

However, that is not this story. If news reports are to be believed, this is the case of a man (repeatedly referred to as a government servant, as though that matters), who physically overpowered, gagged and raped a girl, threatened her with harm (mutiliation by throwing acid on her face), threatened her family with harm and was not arrested immediately, because his mother brokered a promise of marriage between them with her parents. He did not marry the victim, as she refused to marry him (as any sane woman would) and is now married to someone else. He got bail in Sessions Court. The victim challenged it in High Court, which revoked the bail. The accused challenged the overturning of his bail by the High Court in the Supreme Court.

It is unclear what the Chief Justice Bobde meant by asking a now married man accused of rape whether he would marry the alleged victim. Was the Chief Justice planning to dissolve his existing marriage? Can any of the Acts relevant to marriage in India be applied retroactively to sanction child rape? Was the Chief Justice planning to make an exception to monogamy for him? What exactly was he thinking? What did it even mean when he said he was only asking and not forcing? Was that a hint for the rapist to divoce his wife and marry his victim?

Is the Supreme Court a court of law or a matrimonial service?

Given the stigma attached to rape, or for whatever reasons, parents contracting a marriage between the rapist and his victim should not have mattered when the case is in court for a matter of raping a minor and the minor is claiming that any such agreement for a marriage was not with her consent. Nor is this a matter of having sex with the promise of a marriage – which is still fraudulent consent, but at least the consent at the time of the sex, however ill informed, is present! Physically overpowering and gagging a minor and then raping her cannot be wallpapered over with a marriage. It is a crime. As I understand it, in such crimes, it is the state prosecuting the rapist and the victim is a witness. Is the rapist married to the state? Or is this what the “government servant” references are about? The laws are different for government servants because they are jamais (son-in-law) of the state?

Even if the rapist married the victim, it doesn’t make the child rape go away. Regardless, he did not marry the victim, and in a resounding slap to this face, thankfully, also refuse to marry the victim before the court. It did not matter. The judge stayed his arrest for four weeks so that he could apply for bail.

When two people are living as husband and wife, however brutal the husband is, can you call sexual intercourse between them ‘rape’?

Another gem from another case, also from Chief Justice Bobde. In this instance, a man was accused of rape by his live-in partner. The man claims innocence and that he was framed because he promised her marriage but did not marry her and left her when the relationship soured. The woman claims abuse and rape.

It is bad enough that marital rape is legal in India, but when the couple was explicitly not married, and the judge did not seem to doubt that brutality as well as sex had happened, why is the judge so interested in the rapist going unpunished?

Rape is rape. Rape in a marriage is marital rape. Indian law ALLOWS it, that doesn’t change that it is rape. Even if two people were actually married, it would be rape. If it is rape and it cannot prosecuted, then it is the failing of the law, not the fact of the rape. What betrays the interest women of the country and this petitioner in particular is that the protection of marriage offered to rapists is actually being extended to people not married as well by no less than the Chief Justice of the Supreme Court of India!

In a democracy, citizens ought to be equal before the law

It is troubling that the state wants to discriminate between heterosexual and homosexual people when it comes to fundamental rights. It is troubling that the Supreme Court appears to be going out of its way to assist men accused of rape, and attempting to use the protection marriage offers to Indian rapists to those rapists not just not married to their victims, but those married to others as well.

The state and the court need to evolve their view on marriage

Marriage ought to be a consensual relationship between two adults. It is an intimate bond and choice that the state should not interfere with, just like homosexuals should not prevent heterosexual marriages! The consent in a marriage also needs to be respected when it comes to the current blanket approval for rape. A marital rape victim had once “joked” to me that she wanted to sue her husband for domestic violence for hitting her private parts with his, because rape could not be prosecuted. It is not a very funny joke. In fact, it is terrible gallows humor that goes to show that the state does not see women as equal citizens under the law.

Sentences like these haunt the listener for years. Because unless citizens are equal before the law, democracy is a farce.

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