Orissa HC judge says to presume women engage in intimacy only to marry is 'patriarchal'

In a significant observation, Justice S K Panigrahi in the Orissa high court held that it is presumptious to assume that a woman engages in acts of intimacy only with marriage in mind and called this view a 'patriarchal' one.

Hearing a man's plea seeking to quash criminal proceedings against him, the judge essentially questioned the underlying presumption behind criminalising sex on the 'false promise of marriage'. The petitioner was accused of having sexual intercourse with a woman for over nine years promising her marriage.

The court, however, squashed the criminal case against him.

The judge held that the assumption a woman engaging in acts of intimacy as a ‘prelude’ to marriage is a patriarchal ideology and not a principle of justice, according to a Live Law report.

Sexual autonomy a right

The judge essentially questioned the existing legal system which criminalises sex on the 'false promise of marriage'. This is done on the assumption that women engage in sexual relationships only to culminate the same in marriage, he pointed out. However, women have to be viewed as 'autonomous agents' of their own desires who engage in sex out of desire and not out of prospect of marriage.

He said, “The law must be a shield, not a shackle. It must recognise that sexual autonomy is a right, not a bargain, and that the exercise of this right is not a betrayal of virtue, not an invitation for legal persecution.”

Further, he added that if the law aims to serve justice it should 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.

Court's observations

In his ruling, judge S K Panigrahi observed: "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. " And pointed out that 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".

Further, he called a scrutiny of the issue of the automatic criminalisation of failed relationships under the guise of “false promise of marriage”.

"The assumption that every physical relationship between a man and a woman carries the implicit condition of matrimony is not a principle of law but a vestige of control. It is a proposition that denies women the very agency the law purports to protect,” he said.

Sexual autonomy

Focusing on the concept of sexual autonomy, i.e., a woman's right to make independent decisions about her body, sexuality, and relationships, the judge quoted the work of French philosopher Simone de Beauvoir, particularly 'The Second Sex', in which she questioned the 'insidious' notion that a woman's sexual acts are valid only when tied to marriage.

Justice Panigrahi said, “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.”

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Detangle constructs of sex and marriage

The court stressed that there is a pressing issue that demands recognition - the urgent need to disentangle the constructs of sex and marriage both in the legal system and social consciousness that shapes them. It recognised the concept of sexual autonomy as a woman’s right to “make independent and uncoerced decisions about her body, sexuality, and relationships.”

Justice Panigrahi also mentioned revolutionary feminist activists such as Judith Butler, calling her one of the “most influential post-structuralist feminist thinkers” who offered a critical interrogation of gender norms, performativity and power structures to provide a radical framework to understand sexual autonomy beyond rigid binaries of sex, gender and societal morality.

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Justice Panigrahi, however, also noted the reality of women disenfranchised in society who come from impoverished backgrounds and noted that these women are often promised marriage and abandoned after becoming pregnant. He also noted that in other cases, women coming from more conservative households have their choices shaped not by unfettered will but ‘by the narrow confines of tradition’.

For those women, consent may not be of their volition but is a submission to circumstance and pressure of the unspoken expectations placed upon them, he admitted.