Marriage represents one of our most private, intimate spaces. It is this feature that also renders it uniquely prone to violence and abuse. Unfortunately, it is easier to make the case for why intervention is warranted to address marital violence, than for what the appropriate response ought to be.
Through an analysis of the recent split verdict of the Delhi High Court on the issue of criminalising marital rape, this article identifies the thorny issues we are confronted with while seeking to find a solution in criminal law: first, the lack of nuance in rape laws that adequately accounts for the different forms and degrees of non-consensual sex; second, the issue of consent in intimate relationships where there may be social (and/or legal) expectations of sexual relations; third, the overarching emphasis of the law on preserving marital relations, often at significant cost to personal autonomy; and fourth, the difficulties of securing justice for women through the criminal legal system, given its patriarchal (and even misogynistic) leanings.
Split verdict of the Delhi High Court
The marital rape exception (MRE) under the Indian Penal Code, 1860 (IPC) states that sexual acts/intercourse between a husband and wife would not amount to rape, even if it were without her consent, against her will, consented to under fear of death or hurt, when she is intoxicated or of unsound mind, or unable to communicate consent. The constitutionality of the MRE fell for consideration before a bench of the Delhi High Court comprising Rajiv Shakdher J. and C. Hari Shankar J.
Interestingly, both judges affirmed the bodily (and sexual) autonomy and integrity of a married woman, and stated that consent is imperative for sexual relations both within and outside a marriage. Justice Shakdher took these rights to their logical conclusion by holding that it is unconstitutional to not regard acts of non-consensual sex between a husband and wife as rape.
Justice Hari Shankar, however, upheld the constitutionality of the MRE. He held that there is a constitutional justification for treating non-consensual sex between a married couple on a different footing. He asserted that (i) there is a legal and social expectation/obligation of sexual relations in a marriage (the unreasonable denial of sex by a spouse is recognised as cruelty under law, and is grounds for divorce) — this lends non-consensual marital sex a “qualitative distinction”; (ii) the “degree of outrage” of a sexually violated wife (of whom a husband has legitimate expectations of sex) is less than that of a woman raped by a stranger (who has no such rights/expectations); and (iii) the marital bedroom is “inviolable”, on the basis of the “sanctified constitutional and social goal” of protection and preservation of the institution of marriage.
Without the MRE, Justice Shankar was concerned that merely because the wife had “…on the occasion when she had sex with [her husband], been unwilling”, there would be “the possibility of the husband being regarded as the wife’s rapist”, with a child born of such an act being the “product of rape”.
Rape is rape?
Justice Shankar grounded his judgment on the legitimate expectation of sex in a marriage. In doing so, he appears to only acknowledge relatively less violent acts of non-consensual sex, and fails to address the more extreme forms of sexual violence a wife could be subjected to. Justice Shankar euphemistically referred to non-consensual sexual acts in a marriage as “disagreements”, and suggested they “....may even lend strength to the marital bond”. This is a negation of the real harm that even less egregious forms of non-consensual sex may cause within a marriage. Criminal law, under the pretext of the existence of a social and legal expectation of sexual relations, ought not to provide a license for extracting sexual servitude of a woman within marriage.
In contrast, Justice Shakdher, while striking down the MRE, observed that “Rape is rape and a rapist remains a rapist.” The refrain, while instinctively appealing, unfortunately papers over the range of possible sexual transgressions, the varying degrees of harm, and how complicated the notion of consent is. Particularly in intimate relationships such as marriage, consent (its communication and interpretation) is a fraught issue, and is often a product of social and cultural conditioning and gender stereotypes. The criminalisation of intimate partner violence requires a reckoning with this reality. This lack of nuance is a problem not just with the judgments of the Delhi High Court, but with Indian rape law itself.
Rape law as it stands today attracts a minimum mandatory sentence of ten years of rigorous imprisonment (and a maximum of life imprisonment). The definition of rape includes a wide range of non-consensual sexual actions. Whether it is the act of inserting objects into the vagina of an unconscious partner (after first drugging her), or the act of disregarding a partner’s discomfort with/unwillingness to engage in oral sex on a particular instance, both attract a minimum sentence of ten years of imprisonment. While both are acts that cause harm to the victim, it is necessary that rape law grapples with and accounts for the degree of harm caused by an act, the nature of the relationship between victim and accused (and how consent is communicated within it), the amount of coercion used in an act of non-consensual sex, the age and ability of the victim to assert autonomy.
Our fixation with the preservation of marriage
Justice Shankar, in upholding the constitutionality of the MRE, justified the differential treatment of non-consensual sex in a marriage on the footing that prosecution of the husband for rape would destroy the marriage. He observed that the preservation of marriage is a social good, thus granting the institution of marriage precedence over individual autonomy. His views in this regard are regrettably not an anomaly in Indian legal system.
The objective of preservation of marriage is expressly written into statutes governing marriage and divorce (such as the Hindu Marriage Act, 1955 and Special Marriage Act, 1954). Courts are enjoined with a with a duty to “…make every endeavour to bring about a reconciliation between the parties”.
The objective of preservation of marriage is also achieved in how the court’s implement other laws. Section 498A of the IPC was introduced in 1983 to address a serious form of marital violence: dowry deaths, and cruelty by the husband and his family towards the wife. Since its introduction, courts have made sweeping, unsubstantiated statements its misuse by wives and their families. The Delhi High Court, in a 2003 judgment, observed that recourse to Section 498A by wives resulted in “thousands of divorces”, as no reconciliation was possible after institution of criminal proceedings. The court declared this a “social catastrophe”. The Supreme Court in a 2017 judgment viewed the high pendency of cases and low conviction rates as evidence of the law’s misuse. It noted that recourse to Section 498A hampers prospects of reconciliation. The court then proceeded to effectively legislate, issuing a slew of directions that diluted Section 498A, and enlisted the assistance of ‘civil society’ to first examine the complaint and interact with the parties (with the purported objective of protecting innocent husbands and their families, and facilitating settlement between the spouses). Section 498A was thus subverted, and co-opted by the courts towards the patriarchal goal of preserving the institution of marriage.
The unquestioning assumption that preservation of marriage is a social good must be challenged. This assumption underpins every aspect of the legal system that regulates marital relations, and sacrifices individual autonomy and interest at the altar of matrimony. A wife’s recourse to (an often hostile) criminal justice system ought not to be discouraged on the footing that it would irretrievably erode marital relations. It must be recognised as a sign of a corrosive relationship that perhaps ought to end.
The judiciary’s record
While turning to the law (and courts) for solutions, it is worth reminding ourselves of the patriarchal leanings of our judiciary, and the fact that Indian jurisprudence is steeped in misogyny in its approach to rape and sexual violence. The system has viewed rape as a blow to the “supreme honour of women”, observed that rape scars a woman’s most cherished possessions of dignity, reputation, honour and chastity, vilified victims who reported sexual abuse, covered-up sexual violence within the judicial institution (recall CJI Gogoi’s abuse of his judicial position to attack the complainant), and shamed them by deploying misogynistic stereotypes of an ideal victim.
The constitutionality challenge to the MRE (and Justice Shankar’s judgment in particular) must serve as a reminder that not only are our most intimate spaces not necessarily the safest, but that courts are not a natural ally to the feminist cause. A meaningful system of women’s rights must necessarily address the material and structural conditions that make them vulnerable to violence in intimate spaces. This includes ensuring access to shelters, financial independence, and effective legal aid.
A profound irony
There is a profound irony to the constitutionality challenge to the MRE. It was an attempt to secure married women dignity and equality before law by removing the MRE. However, the emancipation it seeks to give women, is by providing them recourse to an institution — the criminal justice system — that has at times trampled over the rights of women, and is as capable of subjecting them to indignities as the domestic sphere that they seek shelter from.
Arti Raghavan is an advocate practising in the Bombay High Court