The Rise Up series is a column that explores how the process of seeking justice can be a transformative tool to combat gender based crimes, while also recognising the survivor client’s agency, lived reality and desire for justice. The column explores the ways in which practitioners working or hoping to work in the field can adopt a gender sensitive lens in their work.
The law relating to rape in India as it stands is such that it first classifies victims of rape based on her relationship with the perpetrator. What do we mean by this? Rape laws in India require that the victim does not share a spousal relationship with the perpetrator. If she does, this disables her from approaching the court with an accusation of rape against her partner. A husband raping his wife is an exception to the crime of rape in Indian law.
This initial classification of victims, based on the relationship they share with the perpetrator, is itself, in our opinion, against feminist, and therefore victim-centred, values. This classification of victims based on whether or not they are married to the perpetrator dilutes the recognition of a criminal act as a crime. It deliberately strips a married woman, who might be raped by her husband, of her agency and it hinders her ability to approach the legal system for any recourse. In this case, the victim is told that her reality is not, in fact, “real enough” for the law to recognise it. As feminists, this approach is directly at odds with our values which seek to centre an individual’s lived reality when understanding incidents of sexual abuse. The Indian law with regards to marital rape simply does not recognise this.
By stating that a wife cannot bring a claim of rape against her husband, the law is also confusing the meaning of consent. Consent based-jurisprudence identifies and asserts individual identity, autonomy and agency. When consent is vitiated as a requirement to determine the legality of an act, it strikes at the victim’s individuality. At the core of this exception lies the notion that by entering into a matrimonial alliance, the woman is impliedly consenting to marital sexual intercourse for the entire duration of the marriage. This exception necessarily dilutes the consent principle as applied to other women on no reasonable basis. As feminists, we know that consent must be given freely, enthusiastically, for each new sexual encounter and continuously throughout. Therefore, if we are to argue from a feminist legal perspective, marital rape must be criminalised as there is simply no valid consent given in such an encounter. Unfortunately, the legality of rape within a marriage has been recognised and even defended repeatedly by the Indian government, judiciary and several legislators who have advocated to retain the immunity granted to the husband where the victim of rape is the wife.
What the Law Says
Section 375 of the Indian Penal Code, 1860, entails that the accused of rape cannot be the husband of the victim. It recognises marital rape as the exception to the offence of rape thereby excluding the possibility of holding the perpetrator responsible if such perpetrator is the victim’s spouse. The Justice Verma Committee Report, has in no uncertain terms, recommended that this exception be deleted. The Committee was quick to take notice of the changing nature of positions of the parties to the marriage. It was observed that the basis of such an exception can be found in older times when the parties to the union were considered to be a single unit. With the evolution of time, it is not ambiguous that marriage is a partnership between two equals thereby not capable of diluting any of parties;’ autonomy. It further states that the relationship between the complainant and the accused does not change the nature of inquiry into whether the complainant had consented. The report is also helpful as it not only recommends that the exception be removed but also realises that despite this removal, there is an imminent danger that marital rape may not be treated as seriously as other rape. It was therefore recommended that this deletion be compulsorily accompanied with the requisite training and change in attitude of the judges, prosecutors and police officers.
The Supreme Court has intervened in cases related to marital rape where the age of the victim was below 15 years of age and held that in such cases, there would be no exception. That is, the perpetrator would be held accountable under Indian law. This judgment concretised the stand of the judiciary against child marriage while creating a further divide between wives who are below the age of fifteen and those who are not. Presently, therefore, victims who are married to the perpetrator cannot bring a suit against their husbands accusing them of rape, unless they are below the age of fifteen years.
This exception has often been justified by relying on the provisions criminalising cruelty under Section 498-A of the Indian Penal Code. This section criminalises acts of cruelty committed against the wife by her husband or the relatives of her husband. The government has repeatedly argued against criminalising marital rape stating that such criminalisation would invariably threaten and destabilize the institution of marriage citing a wide scope for misuse. There is also mention of marital rape as a ground for attracting liability under Section 3 of the Domestic Violence Act, which includes sexual abuse within the ambit of domestic violence. India also owes an international obligation towards the protection of women against violence and sexual abuse under the Convention on the Elimination of all forms of Discrimination Aagainst Women (CEDAW) which recognises marital rape as a form of violence against women.
The argument that these laws are sufficient by the government thereby negating the need for a separate law criminalising marital rape is fallacious. Equating sexual abuse with other forms of cruelty or merely recognising it as a ground for judicial separation does little for the victim whose lived experience remains largely invalidated and unaddressed. One focus of feminist justice is to bring the interests of the victims of gender-based violence (which, given the adversarial system of prosecution presently followed, are negated) to the forefront. The experience of rape victims is not and cannot be equated with those who are victims of cruelty under Section 498A and it is unjust that when it comes to cases wherein the accused is the spouse of the complainant, they are treated on the same footing. The offence of cruelty is not only inadequate to deal with cases of rape but is also markedly different in terms of the recourse available. The punishment avaliable under Section 498A is much lesser than that for cases of rape as have been covered under Section 375-376 of the Indian Penal Code. While the former is punishable with a maximum of three years with an optional fine, the offence of rape is punishable with a minimum of ten years. The fact that a victim of the same crime is not entitled to the same punishment due to socio-cultural notions of family strikes at the root of feminist justice and is something we are trying to tackle.
Cases of gender-based violence are inherently embedded in patriarchal notions of power and gender roles. These power dynamics can be fuelled by socio-cultural norms. One belief that women give unquestionable consent to men for sexual intercourse on being married to them, simply feeds into and highlights the existing power structures which govern a matrimonial relationships in India. It is vital that the right of women to seek adequate legal recourse is not diluted because of these power structures and, instead, the law works to equalise already unequal relationships. It is simply not sufficient to cite that there are other, less impactful, alternatives available.
The Judiciary’s Response
Several petitions have been filed before High Courts and the Supreme Court such as those by RIT Foundation and All India Democratic Women’s Association. These petitions challenge the constitutional validity of classifying rape victims based on their marital status urging that rape is rape whether committed within or outside the insitutution of marriage. Although these petitions are still underway, the response of the judiciary has been positive with Justice Gita Mittal observing that marriage does not entail a license to sexual intercourse affirming the right of both parties to the marriage to say no. Even the Gujarat High Court was in strong support of the criminalisation of marital rape. A troubling trend however comes to the fore – the discourse surrounding the legality of marital rape focuses primarily on the place of such a crime set within the background of a marital institution and not on the victim’s physical and sexual autonomy. In other words, considerations relating to women’s physical, mental and sexual agency is accorded a second-class status within the institutional framework of marriage as it is their marital status which disempowers them to bring a suit against their husbands. Despite the recognition of such autonomy as fundamental to individuals in the recently passed Privacy judgment, the lack of judicial activism with regard to striking down of the exception is alarming.
The silence of the judiciary and the government on the issue of marital rape is threatening to the rights of equality, non-discrimination and individual physical autonomy. By retaining this exception, the courts and the legislature are diluting the importance of consent as the central element of the crime of rape while shifting their attention to the relationship shared between the parties. Even under medical law, it is necessary that consent is taken from the patient before every procedure is carried out even though it is part of the same long-term treatment. Most importantly, a woman under Section 375 of the Indian Penal Code is not precluded from bringing a suit against her (unmarried partner) who she has had consensual sex with in the past, in the event of rape when committed by her partner. In light of this, the fact that consent stands diluted in relation only to women who are married to their perpetrators stands firmly at odds with the principles of justice.
The Future of Marital Rape in India
Although the above observations of the judiciary with regard to the criminalisation of marital rape are promising, its attitude towards this is still uncertain. Oftentimes, the judiciary has refused from engaging with such questions of law citing that constitutional law does not hold any space within the matrimonial bond. Concepts under family law such as marital rape and restitution of conjugal rights conform to the mythical sacredness of the marital bond, reinforcing patriarchal norms which contribute to the detriment of the woman. The recent petition challenging the constitutionality of the remedy of restitution of conjugal rights and marital rape as discussed above are hopeful in bringing about equality within parties to a marriage.
Unfortunately, this is not to say that such criminalisation will single-handedly empower women to stand up against sexual abuse within the matrimonial household. As has been said by Flavia Agnes, a noted human rights lawyer, the criminalisation of marital rape will do very little for the rights of a married woman if not accompanied with the requisite socio-polital awareness and empowerment which is embedded in the rejection of inherent patriarchal norms governing the society.
Uttanshi Agarwal is a Research Associate with the Feminist Justice vertical at One Future Collective.