Conjugal, reproductive rights: India
This is a collection of articles archived for the excellence of their content. |
Contents |
Sex with spouse
Denial of sex by spouse Is cruelty: Supreme Court
Denial of sex by spouse is cruelty: Supreme Court
Manish Raj,TNN | Sep 26, 2014 The Times of India
CHENNAI: If a spouse does not allow the partner to have sex for a long time, without sufficient reason, it amounts to mental cruelty, the Supreme Court has said, upholding a verdict of the Madras high court to grant divorce to a man.
Savitha married Keshav (both names changed) in April 2005. As Keshav was employed in London, the couple went there. Eight months later, they came back to Chennai. A few days later, Keshav had to return to London alone, as Savitha refused to accompany him though he had bought tickets for both. In September, 2008, he moved a family court in the city for divorce. Keshav said when Savitha was in London, she turned violent and hysterical frequently. Despite persuasion, she refused to consummate the marriage, he said.
Countering his arguments, Savitha said she did not consummate the marriage as her husband wanted children only after two years. She asked the court to "restore the conjugal rights". The city court dismissed Keshav's petition for divorce.
Keshav then moved the Madras high court. The court underlined the incidents of cruelty narrated by Keshav. He had said his wife was "not interested in marriage, and during honeymoon in Scotland, she was moody, emotionless and abnormally quiet."
Granting divorce, the high court said: "Despite the lengthy cross-examination of Keshav, there was nothing which created doubt in his testimony." It also said, "Even assuming for a moment that Keshav wanted to have a child after two years, it did not mean Savitha should not have had sexual intercourse. The couple could have used contraceptives and avoided pregnancy," the court said.
Savitha then filed an appeal in the Supreme Court. The bench of Justice Sudhanshu Jyoti Mukhopadhaya and Justice Prafulla C Pant cited earlier verdicts of the apex court which had said that unilateral decision or refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. "Mental cruelty could cause more injury than physical harm," the bench said, upholding the HC verdict. However, as Savitha was not employed, it asked Keshav to pay Rs 40 lakh as alimony.
Sexual act by husband is not rape in absence of consent of wife: HC
Feb 13, 2025: The Indian Express
Extending the marital rape exception to Section 377 of the IPC that penalises unnatural sexual offences, the Chattisgarh High Court on Monday acquitted a man convicted of rape and unnatural sexual offence.
A trial court in Bastar’s Jagdalpur in 2018 had convicted a man under IPC Sections 304 (culpable homicide not amounting to murder), 375 (rape) and 377 (unnatural sexual offence) and had sentenced him to 10 years in jail.
Overturning the verdict, the HC held that “sexual intercourse or sexual acts by a man with his own wife is not a rape and therefore if any unnatural sex as defined under Section 377 is committed by the husband with his wife, then it can also not be treated to be an offence.”
On Section 375, the HC cited the marital rape exception under which a man cannot be prosecuted even for non-consensual sex with his major wife.
Section 377, which criminalises non-consensual “carnal intercourse against the order of nature”, does not contain the marital rape exception. The Chhattisgarh HC has essentially read the Section 375 exception to Section 377 as well.
The HC relied on the Supreme Court’s ruling in Navtej Singh Johar vs Union of India (2018) which decriminalised homosexuality under Section 377 and noted that, following the ruling, if an unnatural offence is committed between consenting partners “Section 377 IPC is not made out”.
Justice Narendra Kumar Vyas said this was “inconsistent” with the marital rape exception which is an “exception provided for not taking consent i.e. between husband & wife”.
The HC also stated that its interpretation is because the marital rape exception is part of a provision that was amended in 2013 and would prevail over the older law. Essentially, the HC cited a “well settled principle of law” that if two provisions are inconsistent “then the two cannot stand together and earlier is abrogated by the latter”. Both Sections 375 and 377 are part of the IPC and were brought in at the same time. However, in 2013, the definition of rape was expanded through an amendment but the marital rape exception itself was not amended.
As per the prosecution, the man was arrested on December 11, 2017 based on the statement of his wife recorded before an executive magistrate before she died the same day at a government hospital.
On the culpable homicide charge, the HC expressed doubts on the dying declaration. The HC stated that while the trial court relied on the dying declaration, the statement did not in fact state that the injuries were caused due to the intercourse. The executive magistrate who testified had told the court that he was told this by the deceased separately. The HC said that a dying declaration must not need corroboration to be considered as admissible evidence.
The HC deemed the man’s conviction under IPC Section 304 “perverse” and quashed it . “The learned trial court has not recorded any finding how the offense under Section 304 of the IPC is attracted to the present facts of the case and proved by the prosecution. Still, it has convicted the appellant under Section 304 IPC, which is nothing but perversity and patent illegality…,” the HC observed. The judge acquitted the man of all charges and ordered his immediate release from jail. —With PTI inputs
Reproductive rights
The international and Indian position
Swati Deshpande, June 23, 2019: The Times of India
From: Swati Deshpande, June 23, 2019: The Times of India
Husband’s consent for ART is crucial
Mumbai:
Holding a 35-yearold woman’s request for her estranged husband to donate his sperm for artificial insemination as a “legitimate, eugenic choice of hers”, a family court in Nanded, Maharashtra, has directed the couple to an assisted reproductive technology (ART) expert for “clinical consultation about the prospect and success of the procedure in their case”. The doctor has to submit a confidential report to the court later. The husband’s consent for ART is crucial.
“A key aspect of personal autonomy are reproductive rights, which entail rights to make sexual and reproductive decisions,” the United Nations International Conference on Population and Development had said in its steering 1984 document that first defined the term reproductive health. Family court judge Swati Chauhan in Nanded invoked its salutary value in the woman’s case.
The judge observed that the issue of reproductive rights is “emotionally debatable and gender intricate” and can generate various legal and social complications and consequences. The court said it can only hold that woman has a right to reproduce and is entitled to exercise it but acknowledged that law has limitations. The husband’s consent for ART is crucial. The couple, both professionals, have a minor child. The husband, who is based in Mumbai, had filed for divorce alleging cruelty by her in 2017 and she approached a court in Nanded for restitution.
But while both petitions were pending, she also approached the Nanded family court in 2018 with an application to have another child from him. Her plea, said her lawyer Shivraj Patil, is that since she is 35, her fertile years are limited and she wants a second child to be a sibling to her first and support to her too in her old age.
The husband opposed her plea questioning its permissibility, legality and her intentions. He refused to have any more children with her even through ART. “No spouse can be compelled to have conjugal relations directly or indirectly, without free consent,” his lawyer had argued. The woman cannot be faulted for her request, said the court. The husband’s consent is crucial though.
The court observed that since both petitions are pending, her plea to have a second child through restoration of conjugal rights cannot be considered. Also, in any case, the judge observed, no court can ever enforce or compel any person to execute an order of restitution.
The judge, though, clarified that in this case “seeking ART procedure is neither in breach of any law nor is violating any social written or unwritten norms. Moreover, the petitioner is ready to incur the full responsibility of the proposed child.” Her assertion to raise the child doesn’t curtail its right to claim maintenance, said the court, holding that the woman’s declaration, thus, is not against public policy. “Reproductive right is closely and directly related to women. But in the patriarchal society in India, majority of women lack decision-making power,” the court observed.
