Editor's Note: A nation’s legal system is integral to how its citizens look upon issues that concern the country in general and their individual lives in particular. Despite having the world’s longest Constitution — not to mention, one that has gone through numerous amendments and the many directives by the Supreme Court that have secured the stature of de facto law, the Indian law books have struggled to evolve at a pace commensurate with the rapid changes society has undergone. As the load of being archaic becomes heavier on our law system, Firstpost introduces a 10-part series titled 'Letter of the Law' to push forward the debate on legal practices and the law itself. The series will explore a variety of aspects pertaining to Indian law through opinion and analyses.

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“While the murderer destroys the physical frame of his victim, a rapist degrades and defiles the soul of a helpless female. When the victim is a mentally challenged person, there is not only physically violence and degradation and defilement of the soul, but also exploitation of her helplessness.”

- Justice Arijit Pasayat, Tulsidas Kanolkar versus State of Goa (2003)

The Supreme Court’s dismissal of women’s agency when adjudicating rape cases is a pattern that has emerged over decades. The trouble with our codified rape laws, and the subsequent judicial actions, is that the intentions and concerns of our judiciary are often misguided. The courts, have over the years, debated the changing contours of the definition of rape, the due diligence of the survivor to avoid victimhood, and the influence of the public/private discourse on the crime, but have hardly ever argued on the harm of the act of the rape on the victim. This has created what can only be considered as an unwarranted and indefensible disparity in the way that courts have perceived rape adjudication and sentencing; this disparity is impacted by myths, stereotypes and preconceived notions about the crime and the victims of rape. As a result, the determination of guilt in rape cases is never an objective, detached process.

A system that has allowed prejudice and subjectivity to creep in for decades cannot be said to have certain set yardstick or standard to adjudicate cases of rape, and in turn, ends up perpetrating rape culture by normalizing and trivialising the effects of the offence. This is also a system that repeatedly discredits instances of rape within a marriage claiming that recognition of marital rape would amount to “excessive interference with the marital relationship”.

This system was stunned into silence in December, 2012 when the brutal gangrape of a 23-year-old woman in Delhi kindled a national conversation about the safety of women in public spaces, and how our legal system was inadequate to deal with the challenges that the case presented. The case of Jyothi Pandey — who was hailed by fictitious names of Damini, Nirbhaya, Amanat, an attempt to escalate her to a higher realm and isolate her from the cruelty of the rape — in December, 2012 sparked debates about how the insertion of an iron rod into the vagina of the victim did not amount to rape, only the penile-penetration did. Should a brutal actus reus of penetration of an object that is not the penis, coupled with the mens rea of malignant harm be classified as rape? The Justice Verma Committee grappled with such questions.

Previously in the 1970s, the Indian Courts found themselves in a similar conundrum — a young girl, Mathura, “habituated to sexual intercourse”, was the victim of custodial rape. The Sessions Court acquitted the two policemen of all rape charges as, in their opinion, there was consent to sexual intercourse. The High Court held that passive submission due to fear induced by coercion could not be construed as consent or willing sexual intercourse; however, the Supreme Court, at the crossroads of what can be considered a watershed moment for rape adjudication, made a blatant error by acquitting the accused policemen because, they opined, there were no visible marks of struggle during the ordeal which suggested the presence of consent. Tukaram versus State of Maharashtra (1979), thus, became a significant case that indicated how a rape victim gets caught in the maelstrom of patriarchy and victim blaming when battling effete laws.

Years later, during the December, 2012 case, the brutality and viciousness of the incident left no crevices for the stereotypes of chastity, virginity and the good woman/bad woman dichotomy to creep in and influence the rape adjudication. The parliament, the executive, the judiciary and the media were united against the brutality of the rape. The questions remained — would women have to be violated in such heinous ways to bring about societal change? Would such a violence have to be in public realm to be recognised? Why hasn’t there been a change in the judicial consciousness about rape in the private domain?

Section 375 of the IPC, that defines rape, contains within it an exception — women who want to challenge sexual violence from their husbands are currently denied the protection of the state as the provision contains a marital rape exemption. The history of this exemption can be traced back to the principle of ‘implied consent’ by Sir Matthew Hale which appears in his History of the Pleas of the Crown (1736) — “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” Lord Halsbury opines similarly — “As a general rule, a man cannot be guilty as a principal of rape against his wife, for his wife is in general unable to retract her consent to cohabitation which is part of part of the contract of marriage. The architect of the penal code, Lord Macaulay, introduced the definition and punishment of rape in clauses 359 and 360 of the draft of the Indian Penal Code, 1860. He followed the same common law principle of not recognising marital rape as an instance of rape. The only mode of protection from rape or sexual assaults within households was the age of consent, which could only protect child wives (age of consent at the time of the draft was ten years, while now it has been increased to fifteen years). However, consent is immaterial, as per the IPC, if the woman is above the age of fifteen years, and the rape legislation bestows absolute immunity to the husband to impose himself on his wife and exercise complete sexual control over her body, in direct contravention to human rights regulations.

The Supreme Court in Bodhisattwa Gautam versus Subhra Chakraborty (1995) has pronounced that rape is a crime against basic human rights and the violation of the victim’s right to life and dignity under Article 21 of the Constitution. In the case of State of Maharashtra versus Madhkar Narayan (1991), the Supreme Court has held that every woman was entitled to sexual privacy and such privacy must be free of violations. Despite these principles, the judiciary has refused to include marital relations in rape adjudication and has not recognised that marital rape exists and that its exemption from Section 375 is violative of constitutional rights.

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A number of countries around the world have criminalised marital rape in the last few decades. According to the Declaration on the Elimination of Violence Against Women published by United Nations High Commissioner for Human Rights, marital rape is a violation of basic human rights. The UN Secretary-General’s study on Violence Against Women in 2006 suggests that out of the 104 countries where marital rape is prosecuted, 34 have codified marital rape as a separate criminal offence, while the rest do not exempt marital rape from the generic rape provisions. Several countries have criminalised marital rape, and India is not one of them.

Justice Verma Committee’s recommendations called for a deletion of the exemption within Section 375. The Committee report indicated — “the law ought to specify that marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation (...) relationship between the accused and the complainant is not relevant to the enquiry into whether the complainant consented to the sexual activity and the fact that the accused and the victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.” Previously, the 42nd Report of the Law Commission (1971) suggested that marital rape be criminalized. However, the 172nd Report vehemently opposed the idea stating that this would constitute to “excessive interference with the marital relationship.” The CEDAW Committee has recommended that India should “widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape”. However, none of these recommendations, including that of Justice Verma Committee, was ever implemented to expunge the marital rape exemption.

In 2016, Maneka Gandhi stated that — “Marital Rape as understood internationally cannot be suitably applied in the Indian context due to various reason like level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament.”

The Delhi High Court in Harvinder Kaur versus Harmander Singh (1984) stated that — “Introduction of Constitutional Law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that stands for. In the privacy of the home and the married life neither Art. 21 nor Art. 14 have any place. In a sensitive sphere which is at once intimate and delicate the introduction of the cold principles of Constitutional Law will have the effect of weakening the marriage bond”. In February 2015, the Supreme Court rejected the plea of a woman whose husband recurrently perpetrated sexual violence upon her person. The Bench consisting of Justices AR Dave and R Banumathi stated — “You are espousing a personal cause and not a public cause...This is an individual case”, thus stating that rape can only considered a crime in the public realm. State versus Vikash (2014) a case from a Special Fast track Court in Delhi ruled that intercourse between husband and wife, even if forcible, is not rape — “the prosecutrix and accused being legally wedded husband and wife, the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused.”

Because of the presence of the marital rape exemption and the absence of judicial consciousness on the subject, there is no data on the number of marital rape cases being reported. Data from the National Crime Records Bureau (NCRB) suggests that 34,651 cases of rape against women (10.6 percent). Comparatively, there were 1,13,403 cases of cruelty by husband or his relatives, using Section 498A of the IPC (34.6 percent). It would be difficult to analyse how many of these cases deal with marital rape.

Many issues in the constitutional rights realm has seen judicial activism, but when it comes to marital rape, the courts almost always take a step back, as if to say that what happens in the private sphere, in the zone of matrimonial privacy, is not the business of the State. In my opinion, the argument that there should be no interference of the State, especially the judiciary, in marital relationships is spurious considering that the judiciary consistently interferes in marital relationships through other criminal provisions, such as adultery, domestic violence, dowry and bigamy. In fact, Ratna Kapur and Brenda Cossman’s book, Subversive Sites suggests that “[...] this understanding of the family as private, and beyond state intervention has operated to both immunise the oppression of women within this domestic sphere, as well as to obscure the extent to which this private sphere is itself created and protected by state regulation.”

Mrinal Satish, his book Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India, writes that prevalent myths surrounding rape as well as stereotypes heavily influence rape adjudication and sentencing not only in Indian courts, but around the world. Thus, the idea of non-interference of the judiciary in marital relationships is also myth rooted in patriarchy and misogyny, that the courts use with pride to shield themselves from taking a stand on marital rape. Just like the myth of chastity and virginity being an asset of women gave rise to the popularisation of the two-finger test, a practice that is now banned; and like the absence of struggle and injuries during rape almost instantaneously provides for an apocryphal case of reasonable doubt, the marital rape question remains untouched by courts because the myth of familial zone of privacy perpetrated by the State needs to be kept alive. As Catherine Mackinnon affirms, the private sphere is not to protect the privacy of the woman, but the privacy of the man — carving out an exclusive, secluded sphere for domestic interests is simply to preserve the man’s use of unrestrained power. The alleged privacy of the home is only a defence for patriarchal violence and aggression, and the judiciary is an accomplice and a henchman, condoning such violence by propagating myths — as Vrinda Grover stated in an interview with Karan Thapar — “You can't lodge a criminal complaint of rape against the husband, it is written in the law."

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The author is a human rights lawyer and researcher based in Bengaluru. She has a master's degree in human rights and international justice from Central European University, Budapest, and writes on women's rights, gender, judicial policy and strategic litigation and advocacy.

She currently works on prevention of violence and strategising justice pathways for the most vulnerable at Swasti Health Resource Centre, Bengaluru.

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Read part one: 'No Democracy without the courts'

Read part two: 'Intellectual property rights: Locating public interest in the law'

Read part three: 'Dissent gagged: Ambiguity of free speech laws in India'

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Original images courtesy: Reuters

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