When warmth goes grey: marriage, has been reduced to contract between two individuals

The bodily integrity is an intrinsic part of individual autonomy that covers the realm of sexual autonomy. Only the individual has the power to make a decision within this domain

Khagesh Meena, TT,  29.07.24:  In Ravindra Pratap Yadav vs Asha Devi, the Allahabad High Court passed a landmark judgment relating to family law. The court accepted a divorce petition on the grounds of a partner's refusal to engage in sexual intercourse. Relying on the Supreme Court judgment in Samar Ghosh vs Jaya Ghosh, the court opined that the refusal to engage in intercourse with a partner can be deemed as cruelty under Section 13 of the Hindu Marriage Act, 1955, making it a ground for divorce.

On the basis of this judgment, it can be argued that marriage, which was considered to be a sacred bond between two souls, has been reduced to as a contract between two individuals in the eyes of the law, thereby granting each partner the right to infringe upon the other partner’s bodily integrity that is protected under the Constitution.

The Allahabad High Court has, admittedly, not set a new precedent. It has only reiterated a Supreme Court judgment that has been accepted by other high courts. But the decision certainly raises numerous questions concerning issues such as conjugal rights, marital rape, and bodily integrity. The most pertinent query among these questions pertains to whether the bodily integrity of a person protected under Article 21 can be infringed upon by his or her marital partner. And is such an infringement discriminatory against a woman?

Before addressing these questions, it is important to examine the rationale on the basis of which the Allahabad High Court gave the judgment. The court had relied heavily on the Supreme Court's decision in the Samar Ghosh case. The problem is that this judgment was passed in 2007. But significant developments have taken place in the court of law in relation to sexual autonomy and privacy of an individual after 2007. For instance, in Joseph Shine vs Union of India (2018), the apex court referred to the reasoning of the Navtej Singh case that "sexual choices are an essential attribute of autonomy, intimately connected to the self-respect of the individual." Therefore, these developments raise constitutional questions about sexual autonomy and privacy.

The bodily integrity of a person is an intrinsic part of individual autonomy that covers the realm of sexual autonomy. Only the individual himself/herself has the power to make a decision within this domain. But in the case of marriage, no such protection from the marital partner is recognised. Keeping in view that conjugal right is still constitutionally valid — a petition challenging the constitutionality of conjugal right is pending before the Supreme Court — it can be said that recognition of such a right is tantamount to encroaching upon personal liberty as it undermines the right to cohabit with the person of one’s choice while foregrounding the right to intimacy. Can it then be said that fundamental rights can be compromised within the ambit of marital relations?

It is interesting to note that in the Joseph Shine case, the Supreme Court had observed that “familial structures cannot be regarded as private spaces where constitutional rights are violated.” Even though such a reason for divorce can be used by both the husband and the wife — this gives the impression of the remedy being gender-neutral — such an intervention could turn out to be patently discriminatory against women when viewed from the point of view of society that is inherently patriarchal. Therefore, legal wisdom such as this violates the rule of equal protection under law.