There are no good or bad rapes: it is a crime both in and out of marriage

Can marriage be a defence for rape? Marital rape is deemed to be an oxymoron in India, primarily due to the assumption that sex in marriage must be consensual. The bar therefore of proving rape in marriage being high, complaints of marital rape are rare and are exceptions than the rule. The rare complainant is often ridiculed and accused of fabricating the charge for ulterior reasons and defaming the husband or the in-laws.

Indian society frowns upon such complaints and usually sees them as frivolous, immoral or both. It goes without saying that women are far more likely to be raped in and out of marriage. And in this century proving sexual violence in marriage might not actually be as difficult as they were earlier. A competent prosecution could look into the history of aggressive behaviour and violence; electronic communication and psychological and other medical tests could come in handy. But none of this is available to the victims in the absence of a law criminalising marital rape.

The Hindu Marriage Act itself is based on the assumption that the rituals and the vows of marriage are sufficient to promise dignity, security and protection to women. In return for an assurance that the bride would be provided material and physical comfort in health and in sickness, she is handed over to the custody of the groom. Consummation of the marriage is again a precondition of marriage and if the marriage is not consummated for some reason, it is liable to be dissolved. Either spouse can also seek restitution of conjugal rights. What is however conspicuous by its absence is ‘consent’.

British jurist Lord Mathew Hale way back in 1736 ruled that in a marriage consent to sexual relationship is both permanent and irrevocable. This diminished the status of the wife to being a legally sanctioned sexual partner or even sexual property of the husband. This old and colonial construct has continued to colour our understanding of marriage and rape. Pervasive patriarchy prevalent in Indian society contributed to further obfuscate the right to equality, bodily integrity and sexual autonomy in criminal law statutes.

The widely held belief, therefore, is that a married woman forfeits her individuality and right over her own body in a marriage and concedes the right to the husband, more so in matters of sexuality. The sexual inequality is explicit in the privileges enjoyed by the husband and in the denial of those privileges to the wife.

Article 14 read with Article 21 of the Indian Constitution guarantees equality and a life with dignity to all citizens, both men and women, without any discrimination. Paradoxically on the question of marriage and sexual violence, the courts have been ambivalent, sometimes contradictory and have fluctuated between protectionism and complicity.

In T. Sareetha Vs T. Venkata Subbaiah, the court held that restitution of conjugal rights under Hindu Marriage Act would run the risk of coercing the unwilling partner to have sex under duress and judicial sanction. Within a year in Harvinder Kaur Vs Harmander Singh Choudhry, the court demurred and observed that allowing the ‘cold principles of constitutional law’ into the bedroom would have the effect of weakening the marriage bond and would be like ‘introducing a bull in a china shop’.

As is evident, courts by and large have considered home and marriage as sacrosanct and beyond judicial or state intervention even in cases involving sexual violence and when rights of individuals are infringed as in marital rape.

In a ground breaking decision the Supreme Court of India read down sexual intercourse between husband and wife when the age of the wife is below 18. The marital rape exemption, the apex court held, would not be applicable in child marriages which are in any case unlawful. But the court refrained from commenting on marital rape involving adult women. Even by conservative estimates India still records the highest number of child marriages globally. As a result, minor but married girls in India are three times more likely to get raped in marriage than adult women. However, contradictions in provisions of IPC, POCSO and the Prevention of Child Marriage Act etc. involving rape are yet to be resolved.

This was once again reflected in the recent split verdict on the Constitutionality of the marital rape exceptions. Justice Rajiv Shakdher of the Delhi High Court held the exception provided under Section 375 of the IPC to be unconstitutional. Justice Shakdher described the exception “steeped in patriarchy and misogyny” while striking it down. But Justice C. Hari Shankar upheld the exception and declared that a husband’s sexual intercourse with an unwilling wife cannot be equated with the same act by a stranger.

Rape by a stranger, held Justice Hari Shankar, is necessarily more traumatic than when a husband forces himself on his unwilling wife. Because the wife might have had consensual sex with her husband earlier, the Justice held, and thus was a mitigating factor to be considered.

The binary between good rape and bad rape is completely anachronistic. Indeed, rape by the partner is likely to be emotionally more traumatic, a more gross and blatant breach of trust and potentially cause far more psychological harm to the victim. A rapist remains a rapist, regardless of his relationship with the victim. It is a moot point if the institution of marriage can be protected through violence and at the cost of one of the partners.

India indeed displays an ingrained hypocrisy in the discourse on marital rape. While the law recognizes sexual violence as an offence in the Protection of Women from Domestic Violence Act, it falls short of criminalizing it in the Indian Penal Code. But the state time and again has defended marital rape and ministers in charge of the Women and Child Development ministry have presented an obscurantist vision in defending the indefensible. Marital rape, they have argued, is a western feminist concept not applicable in the Indian context. There has been a tendency to trivialise the crime of rape in marriage by saying ‘not every man is a rapist’.

Fear that false charges of rape can potentially be fabricated cannot form the basis of what constitutes a crime. Nor can perceived difficulties in establishing the crime be a reasonable ground to decriminalise it.

India is a signatory to several international treaties confirming its commitment to gender equality. The UN Committee on Elimination of Discrimination against Women also recommended in 2007 that India should ‘widen the definition of rape in the penal code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape’.

India’s failure to criminalise marital rape is thus deeply problematic and runs counter to its commitment to sustainable development goals.

(Anita Tagore is Associate Professor in Kalindi College, University of Delhi. She is a doctorate in political science with a law degree)

(This was first published in National Herald on Sunday)