6/27/13 Public morality and the right to free sex

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Public morality and the right to free sex

By editor
Created 25 Jun 2013 - 00:00
Beneath the conventional mindset of equating sex with marriage lies a deeper
concern: to pin responsibility on men who think it’s their birthright to use and
discard women.
Flavia Agnes [1]

Beneath the [1]

Flavia Agnes
conventional mindset of [1]

equating sex with

marriage lies a deeper
concern: to pin
responsibility on men
who think it’s their
birthright to use and
discard women.

Since the day of the Madras high court ruling a week ago, which upheld the right of an
abandoned woman and her two minor children to demand alimony from the man with whom she
had lived without a valid ceremony of marriage, I have been swamped with queries on the
implications of this ruling on women and the society.

Our overzealous media and social networking sites are abuzz with varied interpretations of the
judge’s statement, especially that marriage means “consummation of sexual interaction”
between a man and woman of marriageable age, with or without the rituals. Some view it as a
death knell to the hallowed institution of marriage. The anguished cry, “How can casual sex be
equated with ‘marriage’ where the pledge to ‘cherish, honour and respect’ is taken in the
presence of the holy fire, a sacred deity or the Holy Book?”
The absurdity of the moral indignity expressed by opinion makers baffles me. Is it a deliberate
misrepresentation merely to sensationalise and titillate? The core of the ruling is its attempt to
interpret a clause in the Protection of Women from Domestic Violence Act, 2005 (PWDVA), and
to bring within its ambit entitlements of women who are in technically defective marriages or in
“marriage-like relationships” to prevent men from escaping from their legal responsibilities
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towards them and safeguard the right of children born of this union. It is a statute passed by our
Parliament, not merely a judge-made law. Its aim is salutary.
The worrisome aspect of this positive ruling meant to address the issue of destitution of women
and children, are the unwarranted and flippant comments, such as “sexual cravings” in this
sentence: “…any couple who choose to consummate their sexual cravings then that act
becomes a total commitment with adherence to all consequences that may follow...”
It appears from such comments in the judgment that a man indulging in casual sex with a willing
partner must be punished for it by the bondage of marriage for life. These comments and their
interpretations are being viewed by some as a curb on the right to “free sex without
encumbrances” and a violation of the right to free choice. But these comments are not law and
there cannot be a valid marriage contract without “free consent”. But beneath the conventional
mindset of equating sex with marriage lies a deeper concern — to pin responsibility on men who
think it’s their birthright to use and discard women. Sadly, it lacked the articulation to formulate
this concern in words beyond the patriarchal paradigm of the institution of marriage. That is its
limitation, but I consider it a minor lapse.
During litigation for maintenance, shelter and protection from violence, the usual ploy adopted by
scheming men and their unscrupulous lawyers is to project women in informal relationships as
“women of loose moral character” in order to deprive them of their economic rights. Hence,
despite its inarticulation, I would place this ruling on a far higher plank than the Supreme Court’s
ruling in the D. Velusamy versus D. Patchaiammal case which was pronounced by no less a
legal luminary than Justice Katju, which used derogatory terms such as “concubines”,
“mistresses” and “keeps” in order to justify the setting aside of an order for pittance of
maintenance awarded to a woman by the family court in Madurai and upheld by the Madras high
court.
If Madras high court’s Justice C.S. Karnan had stuck to the framework of the statute and to
Supreme Court’s rulings — such as in the Chanmuniya versus Virendra Kumar Singh Kushwaha
case — which have upheld the right of women in technically defective marriages by holding that
the term “wife” must be given a broad and expansive interpretation, he would have better served
the cause of women’s rights.
He, in fact, had an extremely forward-looking precedent of his own high court to support him. In
2008, Justice K. Venkataraman, in the M. Palani versus Meenakshi case, had upheld the right of
a woman to maintenance even though the couple had not lived together in a domestic
relationship. The appellant had contended that the woman is not entitled to maintenance under
the PWDVA since the parties had not lived together as “husband and wife” at any point of time.
His contention was that the woman had voluntary submitted herself, despite being fully aware
that “he does not believe in the institution of marriage”. And, had there been even a slight
reference to marriage as a pre-condition to sex, he would never have had even casual sex with
her. “Mere proximity for the sake of mutual pleasure” can never be called a domestic
relationship, under the Act, he had argued. But the high court rejected the plea and upheld the
ruling of the lower court.
It is of grave concern to me that even women journalists quiz me about the Madras high court
ruling leading to the erosion of the moral fiber of the society. Whose morality are we talking
about? It is not judgments such as this one that cause the erosion, but the prevailing social
values where men, conservative and progressive alike, consider it their birthright or “fundamental
right” to sexually exploit women by indulging in pre-marital and extra marital-sex and many
women, including professionals, are gullible and fall prey, wittingly or unwittingly.
UN statistics continue to haunt us — every third woman in India experiences violence in intimate
partner relationships. Only after years of exploitation, does the truth that they have been used like
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6/27/13 Public morality and the right to free sex

doormats dawns on even the most educated and “liberated” ones. Most nurse their wounds in
private and move on. But it is essential that a legal provision exist to aid those women who wish
to pin responsibility and claim entitlements. It is time we understand public morality from the
woman’s perspective. From the viewpoint of her rights, irrespective of the morality of rituals.

The writer is a women’s rights lawyer

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