Foreshadowing: Applying Literary Skill to Analyze the LGBTQIA Case and Criminalisation of Marital Rape

What is foreshadowing?

Merriam Webster defines it as “ an indication of what is to come “

Cambridge Dictionary “ the use of details , description , and mood that will take on more meaning later in a written work “

In literature and in movies foreshadowing is a potent art.  It is the clue which hints about events yet to occur. In English literature we can recollect the three witches in Mac beth who tells him that he would become a Thane and then a king and he shall not be vanquished till Birmingham forest comes to Dunsinane hill . Shakespeare , in Romeo and Juliet had Romeo proclaim “ My life were better ended by their hate , than death prorogued , wanting of their love “.

The readers are left mesmerized by this great literary skill and just like our real life we feel that often destiny was foretold.

In movies we can find foreshadowing add to the suspense and mystery. In Harry Potter and the Sorceror’s Stone Rowling describes Professor Quirrell’s turban and that Harry is curious about it . Its only at the end that we realise Quirrell’s turban masks his possession by Lord Voldemort … Harry’s nemesis.

Marvel and Disney movies including Avengers : Infinity War  had foreshadowing not only about the Infinity Stones but about future events yet to unfold.

Matrix , Shutter Island , Star Wars and Jurassic Park all have moments of breath taking foreshadowing.

Let’s apply it to analyse our landmark cases :

Having understood the concept of this literary skill let us delve into the annals of Indian common law and try to decipher the legal acumen which would guide the future development of law in the two most eagerly anticipated and awaited cases of 2023  … “ Law on same sex marriage and  the case relating to criminalization of marital rape”.

The first case which we need to study is the judgement in INDEPENDENT THOUGHT VERSUS UNION OF INDIA Writ Petition Civil 382 of 2013

Exception 2 to section 375 IPC provides “sexual intercourse or sexual acts by a man with his own wife , the wife not being under fifteen years of age , is not rape“

The question before Supreme Court was whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?

Supreme Court of India held as follows

Exception 2 to section 375 IPC in so far as it relates to girl child below 18 years is liable to be struck down on the following grounds :

  1. It is arbitrary , capricious , whimsical , and violative of the rights of the girl child and not fair, just and reasonable and , therefore , violative of Article 14,15 and 21 of the Constitution of India ;
  1. It is discriminatory and violative of Article 14 of the Constitution of India ;
  1. It is inconsistent with the provisions of POCSO ,which must prevail.

Therefore, exception 2 to section 375 IPC is read down as follows ;

“sexual intercourse or sexual acts by a man with his own wife , the wife not being eighteen years , is not rape .”

June 24 th , 2022 U.S Supreme Court overturns Roe versus Wade and revokes the Constitutional right to abortion.

In DOBBS VERSUS JACKSON WOMEN’S HEALTH ORGANIZATION the Supreme Court of USA upheld the ban by the State of Mississippi on abortions.

A few months later in India a Supreme Court bench decided the case of X VERSUS THE PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT CIVIL APPEAL NUMBER 5802/2022

The Supreme Court of India upheld the right to abortion and discussed issues of fundamental rights to privacy, choice, dignity, autonomy, marriage, marital rape and life and liberty. 

Supreme Court says :

“the law must remain cognizant of the fact that changes in society have ushered in significant changes in family structures . in S. Khusboo versus Kanniammal a three judge bench of this Court acknowledged that live-in relationships and pre-marital sex should not be associated with the lens of criminality . the Court observed :

While there can be no doubt that in India, marriage is an important social institution , we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view . To be sure , there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence . even in the societal mainstream , there are a significant number of people who see nothing wrong in engaging in premarital sex . notions of social morality are inherently subjective and the criminal law can not be used as a means to unduly 

Interfere with the domain of personal autonomy.

Morality and criminality are not coextensive .”

Relying upon case of Deepika Singh versus Central Administrative Tribunal…

“  Familial relationships may take the form of domestic unmarried partnerships or queer relationships .”


such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation . the black letter of the law must not be relied upon to disadvantage families which are different from traditional ones .”

“  Societal reality ,as observed by this Court in  Deepika Singh , indicates the need to legally recognize non-traditional family structures to avail of the benefits under beneficial legislation , including the MTP Act.”

A deeper analysis of the aforesaid judgements Deepika Singh and X Versus Principal Secretary gives us an insight into legal recognition to atypical families and also granting them all legal benefits under welfare legislations.

Lets look for legal insights on a future interpretation of section 375 IPC to include marital rape.

Supreme Court held as follows 

Married women may also form part of the class of survivors of sexual assault or rape . the ordinary meaning of the word “rape” is sexual intercourse with a person, without their consent or against their will , regardless of whether such forced intercourse occurs in the context of matrimony. A woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband. We would be remiss in not recognizing that intimate partner violence is a reality and can take the form of rape .”

“  the meaning of the words sexual assault or rape in Rule 3B (a) INCLUDES A HUSBAND’S ACT OF SEXUAL ASSAULT OR RAPE COMMITTED ON HIS WIFE “

As arguments are scheduled to commence from May 9 th in the case on marital rape before a three judges bench and simultaneously the Supreme Courts five judges bench would be continuing to hear the same sex marriage case we can just wait and watch to see the historic judgements evolve and transform the Constitutional rights and jurisprudence. As a lawyer , student of law and a scholar for a life time I would sum up by saying that lets build the literary art of foreshadowing and study once again the landmark judgements of the past including the ones discussed above as well as KS PUTTASWAMY Versus Union of India , 

Navtej  Johar versus Union of India , Shakti Vahini and others wherein right of choice, privacy , autonomy , reproductive health and dignity of an individual have been acknowledged.

In Dobbs the Supreme Court of USA looked into history and text and failed to give “ force and life “ to the Constitutional rights by over ruling Roe Versus Wade . Now all eyes are glued towards our Supreme Court as transformative Constitutionalism is the life and soul of human rights jurisprudence.

Author of the Article:

Rishad Murtaza 

Advocate, Author and a Scholar of Law

Practicing in Supreme Court Of India and Allahabad High Court.

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