It is difficult to understand the obsession of the courts with marriage and its attendant duties and responsibilities, which is evidenced in recent judgments.
We are told by the courts that parties should not rush to court to get a divorce, at least not in the first 10 years of marriage; we are told that all is fair in love and war and therefore it is all right for a 15-year-old to fall in love and marry; and we are told what constitutes cruelty, a judgment (external link) which virtually gives a check list of dos and don'ts in marriage.
'Cruelty' is recognised as a ground for divorce, and a court which is called upon to give a divorce on the ground of cruelty may have to interpret what is cruelty and what is not. However, as the Supreme Court itself notices, this will depend on the individual perceptions of the two people in the relationship, and there can be no straitjacket formula. It is therefore difficult to understand why the court found it necessary to give a checklist of what constitutes cruelty.
Surely, the overarching guideline should be that both spouses are expected to treat the other with dignity, and respect each other's autonomy.
However, it seems that there is an underlying premise in the way judgments are delivered, that marriages must be encouraged, put together, and held together at all costs. What is more, there seems to be a clear understanding on what constitutes a 'good' marriage; indeed, what constitutes marriage.
Not surprisingly, sex and the procreation of children are considered critical to the very existence of marriage.
We are told that, 'If the husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion, without medical reasons or without the consent or knowledge of the husband, such an act may lead to mental cruelty.'
'Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.'
'Unilateral decision of the husband or wife after marriage not to have a child from the marriage may amount to cruelty.'
Together, these three prescriptions lead to the conclusion that it is the obligation of the wife to have sex with her husband as and when he wants it, that is also an obligation on her to bear a child if he wants children, and not to go for an abortion without his consent.
If one adds to this that rape within marriage is not an offence in India, that even forcible sex by a man with his wife is permissible and is not a criminal act, then one can only conclude that women become sexual slaves in marriage and they lose the marriage if they refuse sex.
This seemly equal formulation is in fact unequal. Women alone can bear a child as a consequence of sexual intercourse. There is nothing in the judgment to indicate that a wife can insist that the husband use a condom to prevent pregnancy. This should leave the final decision on the question whether to have children or not to the man.
What more, in actual fact, the responsibility of child care rests solely with the woman. She, not he, is expected to be and is the home maker. There is no provision for paternity leave in the country, meaning thereby that fathers have no role to plan in a child's upbringing. There is no facility for crèches in most offices. This relegates women to the position of homemakers, leaving them outside the job market.
In these circumstances, if they choose not have children, how can their decision be questioned? Or rather, can they be told that they can only remain married if they agree to bear children?
Moreover, it is not proper to compare sterilisation with abortion. The two procedures are different and have different consequences. Under the law in India, a woman can have an abortion for medical reasons, without her husband's consent. The Medical Termination of Pregnancy Act enables her to get an abortion on fairly liberal grounds such as continuation of the pregnancy causing grave risk to life or continuation causing grave physical or mental injury
or if the child she is carrying is abnormal or if the pregnancy is a result of rape (but not by the husband) or failure of contraception (but not for unmarried women).
None of these conditions require the consent of the husband. It is a matter of the woman's mental and physical health, in which only a medical practitioner can offer an opinion. Now the Supreme Court has altered that position and seems to suggest that the husband's consent is necessary before abortion can take place. He can then dispute the medical condition or simply withhold his consent.
The judgment is based on an understanding of marriages which is highly patriarchal and conflates sexual intercourse and child bearing with marriage, the two seeming synonymous.
This is simply not how many people perceive and negotiate their own relationships. The law cannot create a template of a perfect legal relationship called marriage. In today's complex world people have different expectations from each other, which are not necessarily relationships of hierarchy or dependency. Companionship and friendship is the basis of a sound relationship, consent and not coercion is what gives sexual satisfaction. Sex after all is not only for procreation, but also for pleasure.
The judgment does not take note of the newly enacted Protection of Women from Domestic Violence Law, which defines domestic violence in a manner consistent with the dignity of women. This requires that sexual intercourse be with the consent of the woman and a child must feel wanted when born, not born because its father wanted a child without the mother wanting it.
Indira Jaising is a noted Supreme Court lawyer
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