The recent Chhattisgarh High Court judgment holding that unnatural and non-consensual sex by a husband against his wife doesn’t amount to an offence has reasserted that the lives of women remain subservient to majoritarian societal structures.
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This week, while acquitting a man who was convicted by the district court on charges of rape, unnatural sex and causing death by negligence of his wife, the HC observed that the Indian law does not recognise marital rape as an offence. While the statutory provisions have always exempted forced sexual intercourse by a husband, the acquittal, despite the graphic details of violence allegedly inflicted on the wife which led to her death, has unnerved many. The “many” here, though, unfortunately, continue not to be enough.
Over the years, this exemption to marital rape has been challenged before multiple high courts. A few did recognise the exemption to be contrary to constitutional values. However, striking down the exemption has been seen as creating a new offence, an “exclusive” legislative mandate.
The Supreme Court via piecemeal observations has recognised the right of women over their bodily integrity and autonomy, restricted to the context of reproductive rights. The case challenging the exemption for marital rape is now pending before it since 2023. The Union of India in its affidavit in the said case echoes the mass opinion that marriage brings within it legitimate expectations of sexual access and criminalising marital rape would be excessively harsh and disproportionate. The matter has been the source of a long-standing battle between feminists and state actors. Despite various recommendations, including in the J S Verma Committee report, no pillar of the state has responded to the demand of recognising marital rape as what it is – rape.
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The law has been an assertion of dominant societal principles, making its acceptance easier for the society. But when society sees the institution of marriage as inviolable and the right of the husband over his wife as unquestionable, its translation into a constitutionally acceptable law is terrifying, almost giving state sanction to such acts. The juxtaposition of the state’s response to violence against women in instances other than that of marital rape can be understood by how marriage in India is seen as sacrosanct. So, when a woman is subjected to physical, sexual, emotional or any other kind of violence within the institution of marriage, it becomes a private dispute and not a crime with larger societal implications.
The traditional family structures in this country often not only normalise repressive norms but end up as their primary germinating units. Most women, from a very young age, are sold the idea that safety and prestige come with marriage. However, ironically, marriage becomes just another apparatus in patriarchy’s arsenal, to perpetuate violence, as was seen in this case.
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Rape isn’t merely about a violation of a person’s consent but also involves an assertion of power that men enjoy in a patriarchal society. It is used as a tool to keep women in check and have them comply with familial and societal rules and restrictions, for their “own good”, of course. A woman bears the responsibility of upholding the honour of a family and, in turn, that of the society at large. This explains the visceral reaction of our society and state apparatus towards heinous sexual crimes against women that occur outside the private sphere of marriage.
The hypocrisy of the law and society is laid bare when one inspects their response to privacy in the context of marriages between heterosexual individuals as opposed to queer individuals. During Supriyo @ Supriya Chakraborty & Anr. v Union of India, more commonly known as the Marriage Equality case, the sanctity of the heterosexual marriage was repeatedly underscored. It was reiterated that there exists no fundamental right to marry and that a lawful marriage exists only between “a male” and “a female”. Clearly, the defence of marriage existing in the private domain outside the scrutiny of the law does not apply in cases that might upset the dominant family structure which happens to be heterosexual and patriarchal.
The central argument against criminalising marital rape is the fear of its misuse, a reiteration of each time when laws have been proposed for the protection of the marginalised, be it the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) or the Protection of Women from Domestic Violence Act. The sensationalisation around the misuse of laws that seek to protect vulnerable groups detracts from the fact that most victims of gender or caste-based violence lack access to the legal system to begin with. As multiple women’s rights activists have time and again clarified, these claims of misuse lack any empirical proof. Criminalising any act is always accompanied by appropriate safeguards and proof beyond reasonable doubt has been the tenet of the criminal justice system. This must alleviate the fear of misuse.
The writers are research associates at India Justice Report
