Marital rape: How understanding context rather than just focusing on consent will help resolve the issue – Firstpost

Its time we clear the ambiguity over the issue of marital rape. Either we decide to acknowledge it and make it a criminal offence, or we decide to exempt it from judicial scrutiny is a choice that the legislature and judiciary have to make

The personal is political became a rallying cry of the second-wave feminism that took place in Europe. The adage tended to address the gender disparity in terms of structural inequality. The personal experiences of women were said to have links with political and social structures which in turn impacted their interpersonal space. When analysed beyond the legal framework, marriage is essentially an institution that operates in an interpersonal space. It is sanctified by social mores, shielded from any outside interference through societal norms, and decorated and celebrated with a halo of sacredness.

However, this sacred institution faces tough scrutiny when profanities of a crime like rape enter its sanctified territory.

The judiciary and legislature in India for decades have been grappling with the question that whether acknowledging and penalising marital rape would amount to overreach or not, and whether it amounts to an invasion of the personal space of its citizen.

Section 375 of the Indian Penal Code (IPC) which defines rape exempts forceful sexual intercourse by a man with his own wife from being categorised as rape, provided the wife is above 18 years of age. And, it is this exception that has been challenged before the court on several occasions.

The Law Commission of India when confronted with this issue, in its 172nd report titled review of the rape laws, published in 2000, clearly stated that it was not satisfied that [marital rape] exception should be recommended to be deleted since that may amount to excessive interference with the marital relationship.

Now, Delhi High Court on 11 May, delivered its verdict on the bunch of petitions challenging the constitutional validity of the exception granted to marital rape in the IPC. The division bench consisting of Justices Rajiv Shakdher and Hari Shankar gave a split judgement, with Justice Rajiv Shakdher declaring the exception to marital rape as enshrined in Section 375 Indian Penal Code as unconstitutional and Justice Hari Shankar upholding the constitutional validity of the exception clause.

With this split judgment and consensus on the point that substantial questions of law are involved, it is the Supreme Court that will decide on this issue now.

Those seeking to make marital rape a punishable offence argue that the exception provided under Section 375 of IPC to the marital rape stems from the doctrine of overture which makes women subservient to men post marriage.

Another argument made by the those who want to make marital rape a legal offence is that it is violative of Article 14 and Article 21 of the Constitution which guarantees equality before the law to everyone irrespective of religion, race, caste, sex, or place of birth and right to life and liberty, respectively.

Those opposing the move argue that the criminalising marital rape amounts to undue interference in personal matters and would cause a death blow to an institution of marriage. Another argument made by those favouring retaining the exception is that striking it down will result in the creation of a new offence which is a clear case of judicial overreach.

The judgement delivered by the Delhi High Court is reflective of both these sentiments. In spite of the fact that the split judgement has ultimately left it to the Supreme Court to decide upon the constitutionality of the exception clause, it has put forward substantive arguments, both in favour of and against striking down the exemption clause.

Justice C Hari Shankar while upholding the constitutional validity of the exception clause.

The institution of marriage, and the intelligible differential.

The demographics of a marriage are sui generis. The marriage may be between equals or unequals; it may be good or bad; it may be happy or sad; in every case, however, the factum of marriage, and the relationship between the parties that emerges consequent to the solemnisation of marriage, have their own distinct and identifiable indicia, not to be found in any other relationship between any two individuals. Myriad are the examples of male-female relationship; they may be mother and son, sister and brother or, less platonically, girlfriend and boyfriend, or fiance and fianc. The relationship between husband and wife, which emerges as a result of the tying of the proverbial matrimonial knot is, however, distinct from each and all of these relationships. To ignore, or even to seek to undermine, this, is to ignore plain reality. Equally plain, and real, is the fact that the primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex.

This aspect of the matter has been correctly emphasised by Mr Sai Deepak, and I find myself entirely in agreement with him. The petitioners, in my view, have completely failed to note the uniqueness of marriage as an institution, its peculiar demographics and incidents, and the emotional, psychological, social and other complex equations that exist between a wife and a husband. As Ms Nundy (Ms Karuna Nundy, counsel for the petitioner challenging the exception clause) herself acknowledges, there are several legislations which recognise the inherent differences that arise in the context of a marital relationship. The submissions of the petitioners effectively consign all unique incidents of a marital relationship to obscurity. This is particularly evident from a somewhat surprising submission that Mr Rao, learned amicus, sought to advance. Mr Rao sought to visualise four situations; the first in which the man and woman are strangers, the second in which the man and woman are not yet married, but are five minutes away from marriage, the third in which the man and woman have been married five minutes earlier and the fourth in which the man and woman, though married, are separated. Mr Rao sought to contend that the incongruity in the impugned exception was manifest from the fact that while, in the first, the second and the fourth instance, non-consensual sex by the man with the woman would amount to rape, it would not, in the third instance. What was rape ten minutes earlier, therefore, submits Mr Rao, is not treated as rape ten minutes later, though the act is the same and there is want of consent on both occasions.

Striking down the exception clause would mean creating the offence.

To my mind, the proscription on Courts creating an offence by judicial fiat operates as a restraint even on the exercise of the power to strike down a legislative provision as unconstitutional. In other words, if a provision is found to be unconstitutional, the Court may strike it down provided, by doing so, it is not creating an offence. If, by its judgement, the Court creates an offence, there is an absolute proscription, even if the provision is otherwise unconstitutional. If this were not the legal position, there was no occasion, at all, for the Supreme Court, having held that a case for reading down the impugned Exception existed, to examine whether, by doing so, it was creating an offence.

Justice Rajiv Shakdher while striking down the exception clause

The exception clause makes women subservient to men

State appears to have stopped short of conferring the right on a woman to call out an offender who happens to be her husband when he subjects her to rape. The argument that the State has recognised other forms of sexual offences and, therefore, to protect the familial structure, it does not wish to go further (i.e., empower a married woman to trigger the criminal law when her husband subjects her to rape) amounts to giving recognition to the abominable Common Law Doctrine that a married woman is nothing but chattel who loses her sexual agency once she enters matrimony.

Rape should be called rape, irrespective of the nature of the relationship between perpetrator and victim

Certain sexual offences need to be called out for what they are. Sexual assault by the husband on his wife which falls within the fold of Section 375 of the IPC, in my opinion, needs to be called out as rape as that is one of the ways in which the society expresses its disapproval concerning the conduct of the offender. Oddly, the prevailing mores in society appear to stigmatise the victim rather than the rapist. Therefore, I agree with Ms Nundy that the sexual assault which falls within the four corners of Section 375 of the IPC needs to be labelled as rape irrespective of whether it occurs within or outside the bounds of marriage.

The presence of other sections criminalising violence and sexual abuse against women does not mean marital rape should not be made an offence

The fact that certain ingredients of the offence covered under Section 375 are found present in other provisions of the IPC concerning hurt (Section 319 read with Section 321& 323), grievous hurt (Section 320 read with Section 322& 325) or cruelty (Section 498A) does not provide a satisfactory answer as to why a sexual assault which is synonymous with rape should not be labelled as rape when the offence is committed on an adult married woman by her husband.

Advocate J Sai Deepak who appeared for Men Welfare Trust (MWT) which challenged the petition seeking to strike down the exception clause made an important submission.

He submitted, MWT is not opposed to the criminalisation of spousal sexual offences, especially, non-consensual sex between spouses or those in spouse-like relationships. MWT does not contend that husbands/men have a right to impose themselves on their wives/spouses sighting marriage, as be all and end all of, implied consent to every marital privilege including sexual intercourse. That being said, trust, dignity, and respect which form the basis of a marriage is a two-way street. A multi-layered and multivariable nature of a marital relationship has been reduced by the petitioners to one singular issue i.e., consent; a proposition with which MWT disagrees. MWT propounds a more calibrated position.

He added that the issue at hand is not merely about consent, but also about context, which counsel for petitioners seeking to strike down the marital rape exemption clause, refuse to acknowledge and it would be erroneous, to reduce the ambit of the discussion merely to the aspect of consent.

Famous American writer and philosopher Ayn Rand in her magnum opus Atlas Shrugged writes, There are two sides to every issue: one side is right and the other is wrong, but the middle is always evil. As a society, its high time we clear the ambiguity over the issue of marital rape. Either we decide to acknowledge it and make it a criminal offence or we decide to exempt it from judicial scrutiny is a choice that the legislature and judiciary have to make.

But any further procrastination would only allow the middle-evil to tarnish the sanctimonious institution of marriage.

Shishir Tripathi is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective. He writes on Law, Governance and Politics. Views expressed are personal.

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Marital rape: How understanding context rather than just focusing on consent will help resolve the issue - Firstpost