On Wednesday, 11 May, the Delhi High Court delivered a split verdict on a petition seeking the criminalisation of marital rape. The dilemma of the judges was clear in their respective statements. The split verdict on the issue means that the matter will now be taken to the Supreme Court.
In their statements, Justice C Hari Shankar and Justice Rajiv Shakdher made contradictory remarks. While Justice Rajiv Shakdher struck down a provision under law that provides protection to a man from criminal prosecution under rape law (IPC Section 376) for the non-consensual sexual intercourse with his wife, Justice C Hari Shankar disagreed.
Justice Shakdher stated that the legal exception provided to husbands in case of non-consensual sexual intercourse is ‘steeped in misogyny’ and effectively conveys that only the forced sex that happens outside of marriage is rape while forced sex inside a marriage is ‘allowed’.
Justice C Hari Shankar stated that in every marriage the expectation of sexual intercourse is legitimate and valid, and the sex between a husband and wife is ‘sacred’. He added that bringing legal provisions to make it possible for the husband to be called the rapist of the wife in case of incidents of sex without explicit consent may harm the institution of marriage.
He even asserted that a sexual act between a married couple, whether with or without explicit consent, cannot be equated with a forced sexual act between strangers. He also emphasized that when a man and a woman get married, the woman willingly and knowingly enters into a relationship where sexual intercourse will be an integral part and by the very decision of getting married, the woman gives a man the right to expect meaningful sexual relations.
The HC bench allowed the petitioners to approach the Supreme Court. The petitions were filed by RIT Foundation, an organisation named All India Democratic Women’s Association and an individual victim seeking criminalisation of marital rape.
The Centre had in 2017 submitted that removing the exception granted to husbands from being prosecuted for rape under IPC section 376 over alleged acts of non-consensual sex may result in destabilisation of the institution of marriage, apart from being misused as an easy tool to harass men.
Sexual abuse inside a marriage is already covered under domestic violence laws
Forceful sex with a woman is an abominable act, there is no doubt about the moral stand on this issue, but the thing is when we talk about a specific law for instances of alleged forced sex inside a marriage, between a husband and wife, it is not as simple.
This issue has again triggered a lot of debates on social media. A Twitter user named Satish Verma has pointed out some practical issues regarding laws on marital rape.
So, the forced sex between a married couple is not equivalent to forced sex between non-married couples or strangers where no such conjugal rights exist. Sexual abuse within marriage is already covered in domestic violence law. Marital rape law undermines very basis of marriage.
— Satish Verma (@satoverma) May 12, 2022
India has stringent laws against domestic abuse and sexual abuse by a husband comes under domestic abuse. When we add a specific law where a woman can allege that the sexual intercourse performed by her husband was done without her explicit consent, over and above the existing provisions under domestic abuse laws, we open a door where the very institution of marriage becomes fragile and vulnerable for exploitation.
As justice C Hari Shankar pointed out, sexual relationship or conjugal rights comes with the marriage and by the act of marrying each other, a woman and a man give each other the right to expect sex, they give each other consent. So when we introduce a law that says every sexual act between a wife and a husband must happen only after explicit consent, we violate the very institution. Marriage comes with a vast range of socio-economical implications, and responsibilities for both parties. Are we ready to bring pen, paper and ‘consent’ to every single one of them?
As justice Hari Shankar asserted, a sexual act between strangers where a woman is violated against her will and a sexual act between a married couple cannot be evaluated on the same scale. If the marriage involves violence or harassment in any form, mental, physical, sexual, economic or emotional abuse, the aggrieved party already has the option of taking legal help and seeking remedies under the law. The Domestic Violence Act (2005) covers sexual abuse too.
Rapes, consent, marriage and the grey areas of sexual exploitation
Sexual exploitation can take many forms and shapes. We have seen victim accounts in the #Metoo movement where women were ‘forced’ into sexual relationships by coercion, allurement, threat or manipulation, or sometimes by sheer treachery. Exploitation involves a toxic power play where the more powerful person violates the less powerful person. There are many a scenario where ‘consent’, whatever its definitions may be, does not hold much power.
The law provides options to the victim to seek justice for such acts of violation. However, as seen in many rape cases, proving the crime becomes difficult because lack of evidence. Inside a marriage, how are the courts going to examine whether the sexual act between a husband and a wife was done with expressed willingness or explicit denial, with mild reluctance or playful objection?
Laws on marriage and abuse
In India, there are laws against dowry harassment, domestic violence by in-laws and husband’s relatives and a number of legal remedies a woman can seek if she faces abuse in any form during the course of the marriage. As stated above, sexual abuse in the hands of a husband already comes under the ambit of domestic violence laws. It is going to be very difficult for the State and for the Supreme Court to determine the aspects and provisions of law against marital rape, should they choose to do it.
