Abolishing consummation: the need to de-essentialise sex within marriage

Abstract

ABSTRACT This article critiques the centrality of heteronormative sex and “functional” bodies within marriage by analysing provisions on non-consummation andfault-based grounds of divorce, in codified personal laws. Such provisions, arguably, allows judges to construct marriage as an institution entrenched in heterosexual performatives. When heterosexual intercourse is construed as an obligation it leads to three problems. First, courts use such provisions to direct parties to undergo humiliating gender and impotency tests Second, it blurs the distinction between marital rape and marital sexuality. Finally, such provisions present a challenge to the recognition of non-normative,marriages as well, if they come to be recognized in India. Given this, we argue for de-essentialising of sex within marriage through the removal of consummation as a ground of annulment and more broadly, for the introduction of a no-fault regime of divorce. Reliance is placed on recent developments in the arena of privacy jurisprudence in India.