Even the government concedes that a husband does not have a right to violate his wife’s consent. But to use the word rape to describe such a violation is “excessively harsh” and would “shake the institution of marriage”. The government was making its stand clear on the contentious issue of criminalising marital rape through a 49-page affidavit submitted earlier this week to the Supreme Court.
In a nutshell, the government wants you to know that raping a wife, or to use its gobbledygook, “violating her consent” is bad. However, the state will not make it a criminal offence; it won’t even call it rape in the larger overwhelming public interest in “preserving the marital institution”.
Only 32 countries continue to live in an era where raping your wife is legal. India, along with Afghanistan, Pakistan and Senegal, is one of them.
If a marriage is a union between two equals, a man and a woman, then what is this fragile institution that seems to be threatened each time a right is granted to women?
It was threatened when the domestic violence law was brought in over a decade ago. Even now in court, judges complain of how “disgruntled housewives” misuse the law, or lecture them for seeking alimony when they are “able-bodied”.
Earlier in the eighties, the institution of marriage was threatened not by the “kitchen accidents” that were routinely claiming the lives of young brides but by the tougher provisions added to the anti-dowry law. Of course, dowry continues and the institution of marriage endures.
“There is a reasonable expectation of sex within a marriage,” says senior advocate Rebecca John who served as amicus curie in an earlier Delhi high court petition that look at whether marital rape should be criminalised or not. “But this expectation cannot be forced and must come willingly.”
Split judgment
In May 2022, a two-judge Delhi high court bench could not agree on whether marital rape should be criminalised or not. The court was hearing a bunch of petitions questioning the legal definition of rape, which under Indian law, makes the consent of a wife immaterial provided she is over 18-years-old.
The petitions before the Delhi high court questioned this blanket immunity to husbands on the grounds that it went against the constitutional rights of women to equality and dignity, sexual autonomy and bodily integrity.
Justice Rajiv Shakdher was in favour of removing the exception. Consensual sex, he said in his judgment, is at the “heart of a healthy and joyful marital relationship”. Non-consensual sex, on the other hand, is the “antithesis of what matrimony stands for in modern times” and destroys her “dignity, bodily integrity, autonomy and agency and the choice to procreate and even not to procreate”.
Justice C Hari Shanker agreed there could be no “compromise on sexual autonomy of women”. But added somewhat cryptically, “just as every incident of taking of the life by one, of another, is not murder, every incident of non-consensual sex of a man with a man is not rape.”
Both judges agreed that larger questions of law were involved that would be better addressed by the Supreme Court. And that is where the matter now lies.
Welcome to 2024
Domestic violence has emerged as the single-largest crime against women. In India (and globally) one in three women is subjected to violence from a spouse. Nearly half of men and even women believe that a beating is justified if a wife disobeys her in-laws or cooks poorly.
When women are subject to sexual violence, husbands are the perpetrators in 82% of cases, finds the National Family Health Survey-5. Yet, 99.1% of sexual violence goes unreported when the perpetrator is the husband, found a 2018 analysis by Mint.
Until the colonial-era section 377—sex against the “order of nature”—was junked, much to the relief of the LGBTQ community, women at least had the provision of filing cases against husbands who went “against the order of nature”, anal sex, for instance. Now, even that is gone. “The idea of a wife as a man’s chattel is steeped in colonialism,” points out John. “While our erstwhile colonial masters have moved on, we still persist with this mindset.”
In May this year, the Madhya Pradesh high court quashed a first information report against a husband, saying there was nothing unnatural about him having non-consensual anal sex with his wife.
In France, the heinous rape of Gisele Pelicot by her now ex-husband Dominique Pelicot who over a decade drugged her and then invited dozens of men to rape her has ignited a nationwide debate on the need for consent. In the US, the right to abortion and, by extension, to bodily autonomy, has emerged as a key election issue.
Attitudes are changing even in India. In 2022, the Karnataka high court allowed a trial to proceed against a husband for rape saying that the marital rape exception was ‘regressive’. That decision was later set aside by the apex court.
But in August 2021, the Chhattisgarh high court acquitted a man, Dilip Pandey of marital rape after he inserted objects into his wife. Also in August 2021, a Maharashtra court granted anticipatory bail to a man who raped his wife with such violence that it left her paralysed.
Don’t blame the judges, they were merely interpreting the law that holds that a husband cannot be guilty of raping his wife.
The following article is an excerpt from this week’s HT Mind the Gap. Subscribe here.
