\u201cWhat was there to say?… Only that once again they broke the Love Laws. That lay down who should be loved. And how. And how much.\u201d<\/p>\n
– Arundhati Roy, The God of Small Things<\/em><\/p>\n The laws have been rewritten. At least for the queer community. At least in some measure.<\/p>\n In the landmark Supreme Court Judgement<\/a> [2], Section 377 of the IPC has been read down and consensual sexual acts between adults have been decriminalised. Right to privacy being a Fundamental Right, the Supreme Court has upheld bodily autonomy and sexual orientation as fundamental rights and re-affirmed that societal stereotypes cannot be the basis of suppression of individual liberties and freedoms.<\/p>\n The judgement is said to have unshackled the human instinct to love, yet it is \u201cjust a step<\/a>\u201d. Just a step, for sexual minorities, and for society as a whole. Because change is one thing, its acceptance by society, another.<\/p>\n Personal choice, society and law <\/strong><\/p>\n Not very long ago, in early 2018, Arundhathi<\/a>, 25 years of age, a transgender woman assigned male at birth, exercised her personal choice of coming out as a woman. Distraught by Arundhati\u2019s assertion, the mother filed a Habeas Corpus petition in the Kerala High Court. Arundhati had to undergo medical and psychological tests, before the court pronounced her free to make her own choices.<\/p>\n Given this background, the questions that I seek to explore are: Love, sex, sexuality and marriage being matters of personal choice, to what extent do society and law have a stake in imposing restrictions on such choices? And, what can be the possible reasonable grounds for such restrictions? Finally, are we moving in the right direction in this context? This article seeks to ask more questions than answer them.<\/p>\n When Akhila Ashokan, a 24-year-old homeopathy student converted to Islam, renamed herself Hadiya and married Shafin Jahan, her father approached the Kerala High Court with a Habeas Corpus, alleging that his daughter had been a victim of radicalisation, indoctrination and trafficking. The Kerala High Court<\/a> not only annulled the marriage but directed that Hadiya live under house arrest in her college in the custody of the Dean.<\/p>\n The effective imprisonment lasted 9-10 months for her until the Supreme Court passed a judgement in her case. \u201cCan a court say a marriage is not genuine or whether the relationship is not genuine? Can a court say she [Hadiya] did not marry the right person? She came to us and told us that she married of her own accord,\u201d Justice D.Y. Chandrachud observed. From the beginning, she consistently maintained that she married with her consent<\/em> and that she wants to live with her husband.<\/p>\n Would things have happened differently, if Hadiya had been a man<\/a>?<\/p>\n What do the innumerable cases of \u2018Honour Crimes<\/a>\u2019 point to? Crimes against adults marrying not so \u2018appropriate\u2019 partners and without the family\u2019s consent. Adults breaking the love laws, and being abducted, beaten up and killed by family members for doing so. More often than not, by the family members of the woman in question.<\/p>\n According to an EPW<\/a> study, \u201cAlthough the legal system formally defends the rights of individuals as to who they want to live with or marry, it does pose various impediments in the path of those who choose against the will of their parents or the dictates of society. The abuse of process by parents and even third parties goes unpunished by the legal system, only creating new hurdles in the free exercise of the individual\u2019s rights.\u201d<\/p>\n But are legal systems always designed to defend a consensual relationship between adults?<\/p>\n An \u2018internal circular\u2019 from the office of the Inspector General of Registration, Tamil Nadu, dated September 28, 2017, makes it mandatory to produce original documents of parents, dead or alive. In effect, this amounts to introducing parental consent<\/a>\u00a0\u201cby stealth\u201d, before registration of Hindu marriages between legally eligible brides and grooms.<\/p>\n How about adultery \u2013 a married woman engaging in a sexual relationship outside of her marriage? Under the erstwhile Adultery Law, section 497 of IPC, the husband of the woman in question, could alone bring about charges of adultery, and only against the adulterous man, even though it was a consensual relationship between an adult man and an adult woman. In September 2018, the Supreme Court pronounced section 497 of the Indian Penal Code as unconstitutional<\/a>, saying that, \u201cwhile adultery could be a ground for civil issues, including dissolution of marriage, it could not be a criminal offence\u201d. The Central Government had defended section 497 as being important for safeguarding the institution of marriage, hence important for the \u201cCollective Good\u201d, basing its arguments on assumptions of morality, amongst other things.<\/p>\n The binary that matters<\/strong><\/p>\n The larger question that needs to be answered is not<\/em><\/strong> whether it is good or bad sex, moral or immoral sex, natural or unnatural sex, reproductive or non-reproductive sex, romantic or recreational sex, within caste or inter-caste sex; but, whether it is consensual or non-consensual sex<\/em><\/strong>. While the former are shaped by cultural and social norms and we may continue to debate what is right from wrong; the latter is crucial for the wellbeing and safety of all concerned.<\/p>\n According to Explanation 2<\/a> of Section 375 of the Indian Penal Code:\u201cConsent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.Provided that a woman who does not physically resist to [sic] the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.\u201d<\/p>\n In the case of rape of a US scholar Christine Marrewa Karwoski by Mahmood Farooqui<\/a>, the conviction by the trial court was overturned by the Delhi High Court and the accused was exonerated on the following grounds: \u201cIt remains in doubt as to whether such an incident, as has been narrated by the complainant, took place and if at all it had taken place, it was without her will\/consent, and if it was without her consent, whether Farooqui could discern\/understand the same\u201d. The court also added, \u201cInstances of woman behaviour are not unknown that a feeble \u2018no\u2019 may mean a \u2018yes\u2019<\/em>.\u201d<\/p>\n Does a \u201cfeeble \u2018no\u2019\u201d not stand the test of not being \u2018unequivocal voluntary agreement\u2019?<\/p>\n In any intimate relationship involving two partners, what is paramount is the consent<\/em> of both partners.But when applied to diverse contexts, cultures and times, consent<\/em> may be a very nuanced concept that needs to be understood and interpreted carefully and cautiously, particularly by the practitioners of law.<\/p>\n Sexual acts between a husband and his wife without her consent does not amount to rape in the eyes of the law, even when accompanied with use of force. This is so, despite the recommendation of the Justice Verma Committee to make marital rape<\/a> an offence. Is it a legal blindspot or is it important for protecting the institution of marriage and hence the \u201cCollective Good\u201d?<\/p>\n Consent<\/em> is about power or lack of it. And when deciphering consent<\/em>, can the law turn a blind eye to the intersectionalities<\/a> of age, gender, sexuality, caste, class, nationality and so on?<\/p>\n Gender-based violence<\/strong><\/p>\n Human beings have more similarities than differences based on sex and gender. Yet, sex and gender play a disproportionately significant role in determining one\u2019s choices of clothes, interests, education, profession and practically one\u2019s course of life. And most unfortunately, the benign variations in sex and gender form the basis for gender-based violence, which is prevalent in various forms.<\/p>\n The Criminal Law Amendment Act (CLA) of 2013 gave legal protection<\/a> to the women of this country from gender-based violence, like acid attacks, voyeurism, disrobing, stalking, rape, gang rape, rape by husband after separation. Many of these forms of gender-based violence were hitherto unrecognised by law.<\/p>\n Unfortunately these legal protections are not available to those from the LGBTQIA<\/a> community who are not located strictly on the female side of the typical sex or gender binary, though they clearly are victims of gender-based violence in much the same way.<\/p>\n