Indian courts are becoming increasingly progressive in all areas except one – marriage

ANDThe candlelight vigils of more than a decade ago, following the infamous 2012 Delhi gang rape (also known as the Nirbhaya case), continue to haunt public memory. The brutality of the crime, coupled with the perceived middle-class background of the victim, led to a sense of outrage in the media and civil society. Mass protests were held in Delhi and across the country. Yet at the same time as the protests were ongoing, a woman somewhere in India was almost certainly being raped by her husband without the slightest public outcry. Since the law does not recognise the crime of rape by a husband on his wife, the so-called ‘marital rape exception’, such a woman has no legal recourse in the criminal law. Although rape laws were reformed after that horrific case, the marital rape exception has stubbornly remained on the statute books.

The exception was then challenged in the courts. In May 2022, the Delhi High Court delivered a split judgment in which one judge found the exception constitutional and the other held it valid. The learned judge who upheld the provision ruled that the exception was “eminently in the public interest” and that there was a special “entitlement, in the marital sphere, to one’s privacy.” The judge was of the view that neither the court nor the executive should interfere with the privacy of the marital bedroom, even if it meant that a wife who had been sexually assaulted could not seek legal redress.

In areas of formal inequality, where the laws are prima facie discriminatory against men and women, one would think that change would be easy. All the legislature would have to do is step in and change the law to make it gender-neutral. This would involve no more state interference in the marital bond than in any other area of ​​family life. Even a court could rely on the provisions of the Constitution to strike down any clearly discriminatory law. But this is easier said than done for a number of reasons. Marriage laws are deeply intertwined with religion, making reform politically difficult. Courts are also uncomfortable with “personal rights” issues for fear of upsetting the constitutional balance of religious freedom. The situation becomes murkier when one examines the substantive inequalities in marriage. The power dynamics in the atypical Indian marriage clearly favor the man. Social and cultural conditioning, economic disempowerment, and religious practices and taboos work disproportionately against women. In such a situation, even if the laws are ostensibly neutral, their application in a context of extreme inequality would itself perpetuate discrimination. How should the law or judges deal with this imbalance?

Marriage is an ancient institution, albeit in a form that would be completely unrecognizable to most of us in the modern world. Its origins lie in the economic arrangements of groups that are themselves organized around religious or kinship ties. It is no coincidence, therefore, that the law of marriage also lies at the intersection of history, religion, culture, economics and politics. The law has to navigate all these areas with their often conflicting demands. Unlike other areas of law where the courts have been increasingly progressive, marriage is an area where the courts have shown an inordinate degree of deference to both tradition and Parliament. Whether this is a result of the majority of judges being male and therefore steeped in patriarchal tradition, or the result of a genuine conflict of constitutional values, is a matter of debate. But with the courts failing to live up to their role as agents of social change, there is no doubt that the marriage law in India remains deeply flawed and skewed against its most vulnerable citizens. In this chapter, we examine the law of marriage, and in the process ask a more fundamental question: Given its inherently patriarchal nature, is the institution of marriage, with all its flaws, worth preserving? Perhaps nowhere is this question most salient when discussing the rights of a group of people who have none—nonheterosexuals. There, the role of marriage, not only as the repository of a bouquet of rights but also as a public act of state signaling, becomes significant. As the book notes often, it is precisely when inequality becomes apparent that the role of the Constitution as a moderating text becomes more apparent. Unfortunately, in the case of queer marriage, it seems that the community will have to wait a little longer to have its own brush with destiny.

This excerpt from Who is Equal?: The Equality Code of the Constitution by Saurabh Kirpal is published with the permission of Penguin Random House India.