ASEXUALS AND MARRIAGE LAWS IN INDIA

Introduction

Asexuality is a sub-spectrum under the broader umbrella spectrum of LGBTQIA+. In the simplest of words, asexuals(also referred to as “Aces”) are people who show little to no interest in sexual activity or desire for partnered sex. Asexuals can either be romantic or aromatic in nature i.e they may or may not feel romantically attracted to others(romantic attraction should not be confused with sexual attraction). Aces may identify as cisgender, non-binary, transgender, or any other gender. It’s not like all asexuals share a similar thought about sex. Some of them feel positive about sex, some of them feel repulsed by it and yet others feel neutral about it. Some of them still engage in sexual intercourse with their partners, for reasons such as making their partners happy, seeking pleasure from it, or doing it just like doing any other customary chore. There are various sub-classifications to asexuality, namely demisexual, pansexual, graysexual, polysexual, etc. 

There are numerous prevailing myths about asexuality. Some think asexuality is the same as celibacy. However, celibates consciously ‘choose’ to abstain from sex while asexuals are naturally born this way. A few other less informed people consider asexuality as a disorder that can be treated, while in reality asexuality is just how people are orientated and it’s certainly not a disorder(physical or mental). 

Even today, there’s little awareness about asexuality amongst people. Even within the LGBTQIA+ community, aces are not given as much attention as people with other identities accorded. In such a cultural setup, they find it extra difficult to come out to themselves and their families. Many of them get married to homosexuals so that they can meet the heteronormative expectations of society, while others continue to stay trapped in loveless marriages throughout their lives, sometimes hurting both their partners and their own selves on the way; and at other times, staying confused, frustrated or guilt-ridden for not feeling sexually drawn to their ‘legal’ husbands/wives. 

In India, marriage is a sacrament and is considered the union of not only two persons but also of two families. Couples are obligated to bear children of their own within the initial few years of their married lives and start their own families within a reasonable time, in order to feel ‘complete’ and ‘whole’. The institution of marriage functions on the very supposition that all humans are sexual beings leading to the condition that a marriage can be valid only if it has been consummated. All this added pressure makes the life of an asexual even more complicated and puzzling.

Existing position in law

All Personal Laws in India, whether the Hindu, Muslim, Christian, or Parsi law consider marriage invalid if it has not been consummated and can be used as grounds for divorce. Section 13 of the Hindu Marriage Act, 1955 talks about divorce and the various grounds for it- cruelty is one of them. Similarly, Section 32B of Parsi Marriage and Divorce (Amendment) Act, 1988; permits divorce in case “that the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the defendant to consummate it.” Section 10 of the Indian Divorce Amendment Act, 2001; which governs divorce of Christians in India, also holds Cruelty as one of its grounds. The Muslim divorce law also talks about consummation and its necessity in a marriage. 

 In India, it’s now a settled position that denial of sex by a spouse without a valid reason can be considered mental cruelty. But, way before cruelty was actually inserted as a ground for divorce, the Delhi court in Rita Nijhawan v. Balakishan Nijhawan, held that “Thus the law is well settled that if either of the parties to a marriage being a healthy physical capacity refuses to have sexual intercourse the same would amount to cruelty entitling the other party to a decree.” In 2014, the Supreme court upheld a verdict by Madras high court and granted divorce to a couple, saying, “Mental cruelty could cause more injury than physical harm.”

Apart from these Personal Laws, even the Special Marriage Act of India has the provision of Restitution of Conjugal Rights where each partner in a marriage can claim the right to sexual relations.

One can easily recognize that in this existing set-up where consummation is one of the essentials to constitute a legal marriage, two asexuals can never be deemed to be legally married to each other unless they engage in sexual interchange with each other. The most they can do is stay in a live-in relationship, just like is the case with gays, lesbians, transgenders, and people of other identities, in our country. Till now, there has been no formal legal discussion on asexuality in our courts, and it is the need of the hour for Indian courts to wake up to the plight of not only Indian aces but also people with alternative gender identities and the issue of their marriage. 

Just like gay people are made to endure corrective therapy to alter their sexuality, some asexual people are forced to experience “corrective rapes”, which basically connotes non-consensual sexual intercourse with an asexual person with the intention of changing his/her/their opinions about sex. This not only attacks their self-worth, and confidence but also leaves them with lifelong mental scars, trauma, and shock.

Conclusion

There’s a collective lack of attention, awareness, literature, and reference points to understand asexuality in our society, so aces find it easier to stay in a loveless marriage forever than to give explanations and justifications to people about their private lives every day. Indian judiciary and legislature must work with an open mind to safeguard civil rights for asexual people and people of alternative gender identities. Barbaric practices like conversion therapy and corrective rapes must be strictly prohibited at the ground level. There’s a need to amend and redefine existing personal laws or draft new legislation for the LGBTQIA+ community, including inheritance, divorce, and adoption in it, to make the institution of marriage more inclusive and gender-neutral.

Author(s) Name: Anshika Singh (Nirma University, Ahmedabad)

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