SC judgment on “Abortions and Marital Rape” another blow to the institution of marriage


By Dr. Javed Jamil

The recent Supreme Court of India Judgment on abortions, unmarried women’s right to sex and marital “rapes” is another blow to the already disintegrating institution of marriage. It is in fact like a Hydrogen bomb falling on the house of marriage. It is still more surprising as it comes in a country where the overwhelming majority of the people belong to one or other form of religion and where the institution of marriage is still very strong compared to the West. Further, while recently in America, there has been a judgment limiting the scope of abortion, Indian court has chosen to advocate for total freedom in matters of abortion, whatever the circumstances, whatever the age of the foetus.


It is clear beyond doubt that the supremacy of the forces of Economics in the world has become so unchallengeable that now the considerations of life and healthiness of the larger humanity are totally trampled upon. And the courts are openly favouring these “modern” and “liberal” trends. The markets want total disintegration of family system because beauty, sex and abortions, all are huge markets.They talk of the rights of women to have abortions but forget the rights of the unborn children not to be killed and to be allowed to be born. It is the unborn children that have to bear the punishment for the sex of their “parents” for whom nothing but their lust mattered. How brutal is the thinking that while the murderers and rapists are granted right to life, innocent unborn fetuses should be brutally killed just because of the “freedom” of their “mothers” to have total “autonomy” on their anatomy and their “fathers” an undeclared right not to take care of them. Foetuses today, especially in India, deserve sympathy only if they happen to be females. There is hue and cry and rightly so on Female Infanticide but there are no tears for children if they are aborted without knowledge of their sex.

The new sexual morality espoused and promoted by the big business, especially the global merchants of sex annihilated all the barricades in the way of free sex. Marriage or any other formality, age, gender, place, time and previous relation—all paled into insignificance for the purpose of a sexual encounter. The only restriction that the legal framework puts, albeit without making it effective in practice, is the consent of the two individuals seeking sex. If both agree, nothing can stop them. They would be advised however to take precautions as far as possible not to let their ecstatic love drift to an unwanted fruition. This can devastate their own career, they would be told, and also the country’s economy. Never mind though. If despite precautions, a woman conceives, she need not worry. The state is there to provide whatever she needs for a safe abortion: legal permission, social protection and free services. Private clinics, in their own way, are looking to provide the best.

And with abortion begins the sad story of children being killed and abused for none of their faults. An estimated number of about 50-70 million of children are caused to perish every year before their birth. Staggering figures from all accounts! Figures that must put the whole mankind to shame and must jolt from head to toe every person with conscience. But where is the mankind and where is the conscience? What we know of the mankind today is a kingdom of human beasts seeking pleasure and nothing but the pleasure, whatever the consequences. And this is not just the pleasure of the whole mankind at the cost of other creatures. It is for the gratification of the strong among human beings who have mastered the science of eradicating all that can directly or indirectly become impediments in their stupendous march towards an unstoppable fun and entertainment. What then if for this majestic plan, few millions of partially formed human fleshes are to be discarded every month! They are of course just the humans-in-making, not humans. They are the weakest obstacles as well.  Flowers must be protected, proponents of abortion seem to argue, but there is no plausible reason why tears should be shed if buds are nipped to “save” the mankind from “undesirable consequences”. Big movements are organised against the killing of animals and the extinction of rare species, against the uprooting of plants and deforestation, and also against the destruction of historical monuments and sites. These are not humans but still have the backing and support of one or the other elements of power. A notable global campaign on the other hand against the unceremonious killing of millions of humans-in-making cannot be allowed to gather momentum. The cronies of the Big Business are always there, fully armed with the arsenals of “sophisticated” logic and money to thwart any such development. Still, we are made to believe that we are living in a civilised world that cares for the human rights. Ironically, those who shout at the top of their voice for the human rights happen to be those who silently preside over most of these killings. Abortion is a multi-billion market; and if abortion rights are removed, many other markets too will suffer.

Marital “Rapes”

Though the Court did not pronounce final judgment on “Marital Rapes” as it is under consideration of another bench, it clearly supported the idea that forced sex within marriage is also rape. This again is another attempt to weaken the institution of marriage and hardly stands logic. Forced sex by an unknown man has numerous implications. It threatens her whole life as a woman; (a) Her chances to get a good marriage partner get substantially hurt, (b) she suffers an unerasable mental agony, (c) even if she marries a good husband, they can hardly forget what happened; and (c) if she becomes pregnant, she will have to either abort the child or look after it as single mother. Forced sex within marriage has hardly any of these complications and any mental agony associated with it will sooner than later subside, or at the most if they have other problems as well they can opt for divorce.

Open denunciation of marriage
The most disturbing part in the judgment is an open declaration of permission to sex outside marriage and demotion of marriage.

The judges pointed out that law can no longer be interpreted based “on narrow patriarchal principles” about what constitutes “permissible sex” as the Indian society and family has significantly changed over the years and live-in relationships, pre-marital sex and gay sex can no longer be “seen with the lens of criminality”.

“The law in modern times is shedding the notion that marriage is a precondition to the rights of individuals and that changing social mores must be borne in mind when interpreting a law. As society changes and evolves, so must our mores and conventions. A changed social context demands a readjustment of our laws,” the order said. “We would be remiss in not recognising that intimate partner violence is a reality and can take the form of rape. Sex and gender-based violence [in all its forms] within the context of the family has long formed a part of the lived experiences of scores of women,” the order said.

The campaign against the institution of marriage can neither be justified on the ground of biological and medical facts nor on the ground of the “rights of women”.  Marriage is in fact the strongest safety wall against (a) dangerous sex transmitted diseases (b) problems women face as unmarried partners in terms of pregnancy, (c) destruction of the rights of any children born.

The so-called modern sexuality has killed more than 40 million people due to AIDS in last 30 years, and several million more due to other diseases like HPV related Cancer Cervix in women and Hepatitis B. And of course more than 2 billion children have been aborted since the start of the Twenty First Century. The modern feminism has turned tens of millions of women into prostitutes. In Western countries, more than half of the children are born out of wedlock, which means that these mothers and children do not have the support of any males. The free sex turns women into promiscuous partners, unwed mothers and it is they not their male partners who have to undergo the pain of abortion. Yet all this is done in the name of freedom of women. The truth is that the “freedom of women” is freedom to men to enjoy their services without any burden on themselves, and to shift a substantial part of their financial burden to the shoulders of women.

Hindutva going commercial?

What is really beyond common understanding is that SC has given several judgments in last few years, which have served the interests of the forces of economics. These include decriminalization of adultery, decriminalization of homosexuality and increase in the minimum age of marriage. Yet, a government which claims to be the champion of Hindu religion and culture has done pretty nothing to safeguard the traditional system of family, which has a strong connection to Hindu religion and culture as well. RSS too appears to have gone commercial and has hardly made any efforts in the direction of preserving the family system and stopping the rabid commercialization of sex. It is high time all religions came together on the ground of common morality and save India from going towards the total destruction of family system.


Dr Javed Jamil, currently Chair in Yenepoya University Mangalore, is a thinker and writer with over twenty books to his credit  Email :


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