Indian courts must deliver lucid judgment to remove differentiation between marital rape and rape itself

The Gujarat High Court, earlier this week, questioned the concept of "implied consent" in a marriage, while adjudicating a case where the complainant was sexually and physically harassed by her husband. The court observed that non-consensual intercourse by the husband cannot be considered rape, because the law does not allow it; however, subjecting the married partner to have "unnatural sex" would be considered cruelty. In conclusion, the court did advocate for marital rape to be declared a punishable offence under law. The court stated that "the total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanised treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalised".

"The law must uphold the bodily autonomy of all women, irrespective of their marital status," stated the high court judgment that was delivered by Justice JB Pardiwala. The court observed that because there is no law on marital rape, the FIR filed against the man by his wife, on charges of rape (section 376, Indian Penal Code) and unnatural sex (section 377, Indian Penal Code) among other charges, be quashed: "The husband cannot be prosecuted for the offence of rape at the instance of his wife in view of exception-II in section 375 of IPC, which provides that sexual intercourse or sexual acts by a man with his own wife, who is not being under 18 years of age, is not rape."

Representational image. Wikimedia Commons

The court also approached the charges of unnatural sex under the petition – it allowed the initiation of criminal proceedings for unnatural sex, but, in the order, it quashed the section against the man because "except sexual perversions of sodomy, buggery and beastiality, all other sexual perversions, would not fall within the sweep of section 377 of IPC." The high court also directed the police to add sections for sexual harassment and domestic violence under section 498A of the IPC, but it did so while recognising that the extant law does not provide equal protection against rape, and by making a public/private distinction, it perpetuates a barrier to justice that married women may already face in marriages.

We have had several public opinions on marital rape, without really understanding the core issue of women’s rights in a matrimonial relationship. In 2016, Maneka Gandhi, the Union Minister for Women and Child Development, put out that marital rape is a Western concept and does not fit into the cultural context of India. Haribhai Parthibhai Chaudhary, the Minister of State for Home Affairs, stated that, "[T]he concept of marital rape as understood internationally cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs [and the] mindset of the society to treat the marriage as a sacrament.” In 2013, when the anti-rape bill was being discussed in the Lok Sabha, Sumitra Mahajan, a BJP MP, observed that, "Marital rape shouldn’t be made into a criminal offence…Things like these should be sorted out within the family or by counselling. There is no need for a law."

The Justice Verma Committee, however, vehemently refused to recognise marriage as a valid defence against sexual crimes such as rape. The report of the committee, in fact, put out that the "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." The committee identified that the concept of "implied consent" within marriages is, in fact, not implied, and should not be considered as irrevocable. In doing this, the committee challenged the obsolete notions of marriage which regarded wives as the property of their husbands, and they were assumed to be without bodily autonomy, choice and agency.

Keeping this in mind, marital rape should cease to be a concept, and must be criminalised. The Gujarat High Court judgment could have been a path-breaking, progressive one, if the Bench had taken a stand. By advocating for marital rape while simultaneously quashing all charges against the husband on the basis of a technicality in archaic penal legislation, the high court does the bare minimum. It makes no attempt to change the status quo. The judgment delivers an opinion within an already prevailing framework that borrows from and thrives on the public/private dichotomy. It is not difficult to understand that the judgment does not create or inspire policy; at best, it could be a starting point on how marital rape may be viewed by the judiciary.

The judgment could have been more nuanced – it could have dealt with the concept of marital rape itself, where resorting to criminal laws to redress non-consensual sex in marriage is perceived as a threat to the integrity of the matrimonial bond, while invoking the PWDVA is considered a more holistic intervention. The judgment could have also deconstructed the concept of "implied consent", and pitted it against the human rights that women have, irrespective of their marital status. However, in the larger narrative of (marital) rape adjudication in this country, the judgment does nothing.

The Indian government records data on spousal violence, and according to the 2015-16 National Health and Family Survey (NFHS-4), around 5.4 percent of women have experienced sexual violence from their partners. Overall, 2.5 percent and 3.6 percent married women have answered affirmatively to categories of "forced her to perform any sexual acts that she did not want to" and "forced her with threats or in any other way to perform any sexual acts that she did not want to" respectively. It should be kept in mind that these numbers are nowhere near accurate because of underreporting as well as the lack of awareness around the right to autonomy and choice. Translating marital rape from a mere concept to an offence will increase reporting as well as make for a rights-based approach to marriage itself. This can only happen if there is a substantial, lucid judgment from a court of law in India that unequivocally advocates against the exception of spousal rape from the definition of rape.