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Indian Supreme Court Judgement: Another Nail in the Coffin of the Marriage Institution

Indian Supreme Court Judgement: Another Nail in the Coffin of the Marriage Institution

Dr. Javed Jamil

IN another “remarkable” judgment, the Supreme Court on October 11, held that sexual intercourse by a man with his wife, who is below 18 years of age, is rape.

A girl child below the age of 18 cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband, the Supreme Court held.

“Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance,” a Bench of Justices Madan B. Lokur and Deepak Gupta observed.

The Court has ruled that it amounts to rape even if it is with consent. The Judgment is in line with the modern ideologies that have taken every possible step to weaken the institution of marriage. I will like to quote here from my coming book, “Economics First or Health First?”:

“Economic fundamentalism envisaged that the institution of marriage had to be weekend, preferably shattered altogether, to enhance various markets including the markets of fashion, tourism, entertainment and sex. Family for them was what draught is for farmers. Unless draught is encountered, farming would not prosper.  Market-sponsored feminism became one of the biggest movements of the modern history. The market fundamentalists reckoned that a man in the safe arms of his charming wife would be harder to trap; and a woman in the benign custody of the loving husband or other members of family would not be easily available for her services in various markets. In order to derail the marriage system, a number of steps were taken. The minimum age-limit for marriage, for instance, was raised making it legally impossible for a man and woman to marry before the specified age. The rapid growth of population was presented for public consumption as the ground for this amendment in the law. Boys and girls, denied marriage, were however always welcome to have sex before the specified age, which did not attract any legal action. Polygamy was abolished and an animated, outrageous, multi-pronged campaign was orchestrated against it, wherever it continued to exist. On a rapid exchange of legal positions, promiscuity got legal and polygamy illegal. The irony is that it was done in the name of the women’s rights. Women themselves, not properly realising the motive of their “benefactors”, were jubilant in accepting a system wherein they could easily become wretched mistresses or casual partners (without, of course, any legal rights against their paramours) but not second wives (having all the legal rights). Still another step was the complicatedness of divorce. As even after the divorce was granted by the court women would receive maintenance from their estranged husbands, this would deter both from marrying. The extra-marital relationships and self-dependence in financial matters combined to result in an increasingly large number of marriages culminating in divorces. Anti-marriage campaigns did not stop here. To make the institution of marriage unpopular, it was incessantly degraded as an unnecessary burden. Marriage was steadily substituted by live-in companionship, with increasing numbers of young men and women gradually accepting it. The ever-increasing rate of divorce further persuaded the people to think that, if the marriage was destined to come to a gruesome end followed by legal wrangling, why it should not be avoided altogether.”

If the Supreme Court is truly anxious to ensure women’s rights, it must clearly rule that any kind of sex before the legal adult age will be considered a crime. If marriage before a certain age is crime and even sex with his wife is rape, how come, sex with 17 year old non-wife is not a crime even if it is done with consent? Further, there should be a total ban on sex of a married person outside marriage even if it is with the consent of both. How can promiscuity be a guarantee against women’s rights if polygamy is a violation? Promiscuity and premarital sex are surely much more dangerous in terms of health and social effects than polygamy and marriage before 18. In a world where in several countries, teenage pregnancies have become a rule rather than the exception, how can marriage between two biologically adults be denied? How can sex between two consenting individuals be a matter of “personal freedom” if the marriage with mutual consent is not considered a matter of personal freedom? But in a world ruled by the forces of economics, who can ask this question? Why is “freedom of choice” available only to the unmarried and not to the married or willing to be married?

To further complicate the matters, there are constant efforts by the enemies of family system to declare a non-consensual sex with even an adult wife “rape”. Why rape is heinous is not just simply because sex was against consent but also because it was done with a woman who was not supposed to consent for sex and the after-effects of such a crime are serious. A wife who has had sex with her husband and is supposed to continue with it does not have to face the kind of effects that a stranger woman faces. While a forced sex even with a wife can be wrong and can even be made punishable but to equate with rape and award a punishment to the husband which is meant for a rapist is nothing less than beheading justice.

The Judgment will of course be hailed by the forces and the media controlled by the forces because it will prove to be another nail in the coffin of the marriage institution.

 Dr Javed Jamil is India based thinker and writer and Head of Chair in Islamic Studies & research, Yenepoya University, Mangalore. Read more about him at Facebook page:; also He can be contacted at 




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