'Marital rape a disgraceful offence’: Gujarat HC's ruling progressive, but mere condemnation of practice rings hollow

Marital rape is not yet a criminal offence in India, though the matter has been debated by legislators, policymakers, activists and the civil society for a long time. Maneka Gandhi, Union cabinet minister for women and child development, stated that in the Indian context, marital rape cannot be considered a truth:

"[m]arital Rape as understood internationally cannot be suitably applied in the Indian context due to various reasons like the level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, the mindset of the society to treat the marriage as a sacrament," she had said.

Earlier this year, in August, the central government filed an affidavit in the Delhi High Court against petitions by women's organisations who demand that marital rape should be penalised, stating that criminalisation of marital rape will destabilise the institution of marriage, and become an easy tool for harassing husbands.

Marital rape. Representational image. Reuters

Representational image. Reuters

On 7 November, the Gujarat High Court, in a matter examining questions around whether a wife can initiate prosecution against her husband for unnatural sex under section 377 of the Indian Penal Code, condemned marital rape. The high court termed marital rape as a 'disgraceful offence'. Justice JB Pardiwala, who heard this case, expressed his censure for marital rape, at a time when the government is refusing to acknowledge the offence and criminalise it.

The judge had stated: "Marital rape is in existence in India, a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalisation of the practice." The Gujarat High Court’s acknowledgement of the issue and the gender dynamics involved in the non-criminalisation is immensely radical.

Moreover, Justice Pardiwala puts out a succinct definition of marital rape - "unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. It is a nonconsensual act of violent perversion by a husband against the wife where she is abused physically and sexually."

The extant text of the Indian Penal Code, especially the section 375, does not regard non-consensual, coerced sexual intercourse in the ambit of marriage as rape. As per data from the National Family Health Survey (NFHS-4) 2015-16, 28.8 percent women have experienced spousal violence, of which 23.6 percent women were in urban areas and 31.4 percent were based in rural areas.

The NFHS-3 (2005-6) indicates that of the nine percent women who report sexual assault, about 94 percent incidents are spousal violence. The National Crime Records Bureau (NCRB) reports that in 2015, there was a total of 1,13,403 reported cases of cruelty against women by their husbands/his relatives.

It may be significant to know that none of these indicators directly refer to the phrase 'marital rape'. Indeed, India is a society that is extremely discomfited to publicly acknowledge that because of gender dynamics and the iron fist of patriarchy, marriages are often precarious sites where women are raped.

So far, the Judiciary's role in the activism for the criminalisation of marital rape has been bleak. For instance, in Harvinder Kaur versus Harmander Singh (1984), the Delhi High Court 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 Article 21 nor Article 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 saying this, the court proclaimed that there was a zone of privacy between husband and wife that was beyond the realm of constitutional rights and the human rights framework. Very recently, in State versus Vikash (2014), the Special Fasttrack court in Delhi astonishingly ruled that even forcible, sexual intercourse between husband and wife cannot be termed 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," the court had said.

It is for this reason that the Gujarat High Court's decision to examine the ambit of sexual coercion in a spousal relationship is interesting. The court is essentially going against the prevalent "Judicial consciousness" around the subject and extracts marital rape out of the myth of matrimonial privacy and in the public sphere.

The matter (Nimeshbhai Bharatbhai Desai versus the State of Gujarat) is one where the court is to decide whether a wife can initiate a prosecution against her husband for unnatural sex under section 377. It also looks at what would happen if a husband forced his wife to indulge in oral sex – would it constitute an offence of cruelty under section 498A or would it attract section 377? Moreover, would such an act also constitute an offence (rape) punishable under section 376?

The judgment begins on a progressive note, condemning the act of marital rape right at the outset and thereafter, putting out the various types of marital rape: i) battering rape, where the wife experiences both physical and sexual violence in the spousal relationship; ii) force only rape, where "husbands use only that amount of force, as it is necessary to coerce their wives" – women who refuse sexual intercourse usually face assault in such cases; iii) obsessive rape, where assaults involve brutal torture and perverse sexual acts.

While the Gujarat High Court's academic approach towards the subject is appreciated, the judgment is flawed. The judgment is perhaps reluctant to look at non-consensual penile-vaginal intercourse as sex. It puts out types of marital rape, without examining the acts involved, and only looks at the effects that such rape might have on the survivor – for instance, battering rape does not give the reader a sense of what acts took place, and indicates that the woman was beaten up and battered during the rape.

This is reminiscent of a piece titled 'The Language of Gender Violence' by Jackson Katz, where he examines that the language of gender violence is often passive, and no one is essentially responsible for the violent incident: "So, you can see how the use of the passive voice has a political effect. It shifts the focus off of men and boys and onto girls and women. Even the term 'violence against women' is problematic. It's a passive construction; there's no active agent in the sentence. It's a bad thing that happens to women, but when you look at that term 'violence against women', nobody is doing it to them. It just happens to them… men aren't even a part of it!"

Secondly, by not explicitly including coerced penile-vaginal intercourse within the ambit of marital rape, the condemnation of marital rape remains an empty promise. By not bringing such an act under the ambit of the penal code, the judgment accepts that it is the wife's duty to provide sexual intercourse whenever the husband desires. Such an assumption, emanating from patriarchal thought-processes, draconian.

The Gujarat High Court, like all courts before it, has assumed a zone of matrimonial privacy – a private sphere, where the State cannot interfere, a dominion of the husband, a secluded space for domestic interests. A true form of condemnation of marital rape would be to urge the legislators to consider that the times have changed, review the Indian Penal Code and to include marital rape within section 375.

In 2012, the Justice Verma Committee stated that "rape or sexual assault is not a crime of passion but an expression of power and subordination. No relation, including marriage, supplements an irrevocable consent of sexual activity" and observed, in its report, that "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."

At this juncture, the least that the Indian judiciary can do is be true to constitutional principles when it comes to the issue of marital rape. Mere condemnation is not enough.

Updated Date: Nov 09, 2017 11:19 AM

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