The Odisha high court questioned the logic of criminalising sex on the promise of marriage and said notions that a woman engages in intimacy with a man only as a precursor to marriage is “patriarchal”, legal news portal LiveLaw reported.
The single judge bench headed by Justice Sanjeeb Kumar Panigrahi was hearing a man’s plea seeking to quash criminal proceedings against him under various sections of the IPC. The petitioner was accused of having sexual intercourse with a woman for over nine years under a promise of marriage.
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The judge called for law to recognise that an act of sexual intercourse is not a promise to guarantee a predetermined outcome. Terming such notions as “patriarchal”, the judge called for recognising women’s right to make independent choices about their sexuality, body and relationships.
However, Justice Panigrahi clarified that marriage is a deliberate pact between two individuals out of personal choice and enjoys the sanction of law.
The judge also cited French philosopher Simone de Beauvoir’s work on women’s rights, “The Second Sex” to stress on a woman’s right to choice and bodily autonomy.
“Marriage is a choice, not inevitability. It is a legal recognition, not a moral recompense for physical union. It is an agreement, not atonement. To treat it otherwise is to strip individuals of their right to define their relationships on their own terms, to reduce love to a binding transaction, and to transform desire into a liability,” LiveLaw quoted the judge saying.
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The bench also called for reforming legal presumption that a woman engaging in intimate overtures only with an intent to marry a man. It termed such assumptions as “patriarchal” and against personal choices of women.
“It is this fiction of destiny that the law must resist. The presumption that a woman engages in intimacy only as a prelude to marriage, that her consent to one act is but a silent pledge to another, is a vestige of patriarchal thought, not a principle of justice. The law cannot lend itself to such a perversion of choice, where failed relationships become grounds for legal redress, and disappointment is cloaked in the language of deception,” it observed.
Pointing out to conservative social values, the judge said that a woman’s consent may not always be out of her choice, but a submission to social pressures and circumstances.
The judge called for reforming law from such traditional notions to recognise a woman’s right to her choices. “If the law is to serve justice, it must evolve, not in deference to tradition, but in allegiance to the fundamental truth that a woman’s body, her choices, and her future are hers alone to define,” he added.