Marital Rape: Justice Hari Shankar Opinion Ignores Precedent, Upholds Patriarchy

Judgment which caused split ignores key developments on privacy & how marriage shouldn't reinforce oppressive norms.

Image used for representational purposes.

(Photo: Deeksha Malhotra/The Quint)

The decision in the Marital Rape Exception (MRE) case hardly comes as a surprise. It was during the hearing itself that predictions had been made on the basis of the line of questioning of both the Judges which indicated an eventual split verdict.

While Justice Rajiv Shakdher demonstrated a perspective that tilted toward declaring the exception as unconstitutional, Justice C Hari Shankar’s thought process showcased his viewpoint of the exception being constitutional.

The comments and questions rendered by Justice Hari Shankar during the course of the proceedings indicated that he had serious reservations about the MRE being struck off, and the consequences that would follow in the name of false cases, absence of intelligible differentia, and the destruction of the sanctity of marriage.

However, the opinion that has been delivered, in no less than 200 pages, betrays legal arguments steeped in patriarchy, meant to sustain a social institution at the cost of the mental and physical well-being of the wife.

This article is an attempt to break down the legality of the reasoning adopted by the learned Judge interspersed with its sociological underpinnings.

A Flawed Understanding of the Ground Realities for Women

The opinion proceeds on the premise that the act of non-consensual sex cannot be pigeon-holed into the category of rape, and the relation between the parties is a relevant factor in deciding the gravity of the offence, or the lack thereof.

The learned Judge alludes to an example of how every act of taking a life is not murder. While that is fair, what the learned Judge does not seem to realise is that every act of taking a life has punitive consequences.

The circumstances surrounding taking of a life may dictate the gravity of the punishment doled out, however, the criminality of the offence remains, unless the general exception of self-defence applies.

The MRE, on the other hand, categorically shields a husband committing rape from any punishment whatsoever, thereby condoning the very act of rape. It is hardly possible to say self-defence can be invoked in such a case.

While considering the “unique demographic of marriage” and arguing that Article 14 of the Constitution cannot apply on account of intelligible differentia, it seems that the learned Judge has failed to take into account that marriage in India stands on a different footing from marriage in countries which are relatively more progressive.

In India, the marital status of a woman, regardless of whether the marriage is blissful or not, decides the worth of a woman. A woman without a husband is deemed to have no value and is viewed as a discarded product.

The onus always lies on the woman to ensure that the marriage runs smoothly, the children are raised right, and the husband is happy. A single woman is assumed to be flawed, and a divorced woman is ostracized.

Keeping in mind these circumstances, one must realise that it becomes infinitely harder for the wife to leave her marriage as the repercussions of doing so affect the wife more than they do the husband.

Instituting false complaints of rape against the husband due to trifles in the marriage is an option that cannot be exercised by the wife as the scales of societal excommunication tilt against the wife.

The idea that the institution of marriage justifies a differential treatment being extended to the sphere of sexual relations indicates that the learned Judge is divorced from the ground reality in India where women rarely inhabit the freedom to lead lives without the support of a male family member. Without being subjected to platitudes on her non-conformity with normative behaviour, and the guilt and shame she should feel associated with the same.

With regard to false cases arising out of acrimony between the husband and wife being slapped on husbands, it is clear that the learned Judge has not considered how the number of unreported rape cases far outweigh the false cases that are instituted.

The 2020 National Crime Records Bureau report states that with regard to Section 376 of the Indian Penal Code, 1860, only 28,046 cases were reported, and out of them, 3,375 cases were closed by the police on account of being false.

The paltry number of 28,046 cases shows that more often than not, cases go unreported, with more than 90 percent cases not being reported, according to research, including that of the National Family Health Survey (NFHS).

On top of that, the less-than-30 percent conviction rate instils no confidence in the survivor that she will be protected from her abuser even after filing of the case.

These statistics portray that the very act of even reporting a rape becomes an act of defiance against the moralistic standards set by society.

Where is the Rational Nexus?

While the learned Judge is legally correct about the fact that classification which departs from the equal protection clause is not per se discriminatory, this classification must be rooted in reason and must have a rational nexus with the object that is sought to be achieved.

Mere differentiation or inequality is not discrimination, and the one who is contending for it to be the same must show that selection or differentiation is unreasonable or arbitrary.

Despite recognizing how a Court must be cognizant of the prerogative of the legislature while devising such a classification, the learned Judge fails to account for the changing social milieu.

In a day and age when individual rights are being placed on a pedestal and women’s rights are dominating conversations, Justice Hari Shankar refers to the legislature’s intention to preserve the marital institution as a legal object bearing a rational nexus with the MRE.

He refuses to venture into the question of classification beyond this point by stating that the scope of enquiry of the Court ends there. By treating the perspective of the legislature as paramount, the learned Judge restricts the examination of the MRE as unconstitutional to the fact as to whether the legislature had the competence to propound such a provision.

This classification, which is bereft of any logical reasoning as such and only rests on the factum of marriage being a sacred concept in itself, reeks of conservativeness which robs the wife of any right to exercise her own will.

The learned Judge consistently states that the consent of the wife is important and that in no way is he encouraging forceful non-consensual relations between spouses.

However, the “perceived effect” of the opinion more or less communicates that the burden rests upon the wife to ensure the subsistence and survival of the marriage, taking us back to an age where the wife’s duty was to solely satisfy her husband, run the household and rear children.

Expectation of Sex = Right to Sex?

The majority of the opinion emphasizes on the sacredness of marriage – “most pristine institution of mankind, on which the entire bedrock of society rests” – and how exertion of the right to bodily autonomy or decisional autonomy on the part of the wife can lead to its destruction.

The learned Judge waxes eloquent on marital relationships and the legal obligation that arises from it; how a marriage survives on “care, consideration, and an understanding of one other’s likes and dislikes, hopes and aspirations”.

Unfortunately, these ideals enumerated by the learned Judge contradict his finding that consent of the wife holds no water in the face of legitimate expectation of sex that exists in a marriage.

The opinion also glosses over judgements that have been rendered by the Supreme Court, such as Suchita Srivastava v. Chandigarh Administration (2009), which crystallise a woman’s right to refuse participation in sexual activity which flows from her rights under Article 21.

It is unconditional and enthusiastic consent which prevents the act of sexual intercourse from turning into the crime of rape as can be seen in nearly all the ingredients of the offence – despite the semantic acrobatics adopted to argue that the concept of rape in the IPC is somehow not founded on consent.

Lack of consent leads to the categorical violation of a wife’s rights under Article 21 of the Constitution. It is legally and morally unconscionable that a woman loses this sacrosanct right under Article 21 when she enters a marital union.

It may be the right of the husband to seek sex in marriage, however, in no way is the wife compelled or obliged to discharge this obligation. By being forced to have sex with her husband as a matter of duty, the wife is relegated to a second-class position with no right to choose.

The learned Judge is so horrified by the aspect of a husband being labelled a “rapist”, that he completely erases the trauma that is inflicted upon the wife as a result of forced sexual intercourse.

Merely invoking Sections 304B, 306, 377, 498A of the IPC, or Section 3 of the Dowry Prohibition Act, 1961, would not be sufficient when the ingredients of rape as stipulated under Section 375 IPC are made out – as was eloquently explained to the court by senior advocate Rebecca John, amicus curiae.

Merely on account of the offence being committed between spouses, the wife should not be robbed of the language to express her grievance. Easy access to the wife should not absolve the husband of his deeds.

A great disservice is done to the cause of women's empowerment when the Court gives up on examination of the constitutionality by simply stating that those who are dissatisfied by the sufficiency of these provisions should approach the legislature instead.

With this reasoning, the opinion completely forgoes Joseph Shine v. Union of India (2018) where the Supreme Court had stated that even if the aim of a law was to protect the institution of marriage, no justification could be recognized that would deny a woman of her agency under Article 21.

Similar to how Joseph Shine observed that Section 497 IPC (criminalization of adultery) was founded on the notion that woman lost her voice, autonomy and agency upon marrying and was subordinate to her husband, the MRE follows the same premise.

The opinion perpetuates the patriarchal idea that husband is the owner of the wife’s sexuality, and in that process, unsettles the settled law that has already been propounded by the Supreme Court.

Whither the Right to Privacy?

The learned Judge grants non-consensual sex immunity from being made an offence solely on account of the fact that it takes place within the confines of marriage, thereby completely extricating the wife’s right to make any decision with regard to her body and her dignity.

The privacy of the marital union is granted a higher accord than the privacy of the wife; a fundamental right which was categorically and unanimously upheld by all nine judges in Justice K.S. Puttaswamy Retd. v. Union of India (2017).

Despite harping on how the rights of an individual are subsumed by a marital union, the opinion virtually states that the husband’s right to have sex triumphs a wife’s right to not have sex, and this cements the draconian perception of how the wife is inferior to the husband and how her only duty is to maintain the domestic sphere of life and satisfy her husband’s needs.

The hypotheticals that have been invoked to justify this reasoning by the learned Judge, in his own words, are “mind boggling”.

In its zeal to maintain the presumption of constitutionality and sustain the sanctity of marriage, the opinion has extinguished the rights of the wife and opened the doors for continued legitimization of marital rape.

The developments that have taken place in Indian jurisprudence with regard to equality of spouses has been undone in this opinion.

In Navtej Singh Johar v. Union of India (2018), the Supreme Court had observed that the legislature’s intent of protecting the institution of marriage subverted the equality of spouses, and that marriage in a constitutional regime was founded on equality of and between spouses.

Each spouse is entitled to the liberties guaranteed under Part III of the Constitution of India.

This reveals how the perception of marriage has undergone monumental changes, and how it has moved away from simply being a union meant for procreation, to a union between equals meant to nurture and develop the growth of two separate individuals.

However, none of these ideals have been taken into account in the opinion that has completely invisibilised the progress that has been made in the psyche of Indian society over the years, or at least made by the apex court's jurisprudence.

How Did the Learned Judge Judge How Women Who Are Raped by a Husband Should Feel?

It is infuriating to read how the act of rape is recognized in the opinion as a crime of power where the woman is forced to surrender herself to a complete stranger – but inexplicably, all acts of forcible sex by a husband are excluded from within the ambit of this understanding.

It is particularly galling to see how the learned Judge, without any basis for doing so, assumes and dictates how a woman should feel if subjected to rape.

While there should ideally be no comparison of trauma as such, in my humble opinion, being forced to have sex with your husband might be even more damaging than being raped by a stranger as the former entails a complete breakdown of trust reposed in a spouse and carries with it a constant threat of repetition.

It is this logic that applies to the POCSO Act when sexual assault committed on a child by a person with whom the child shares a fiduciary relationship is considered to be an aggravated form of the offence. The same goes for the offence of rape involving such persons, as found in Section 376(2) of the IPC.

The convoluted reasoning provided in the opinion with regard to consent of a wife and the terming of non-consensual sex between the husband and wife as rape requires intense analysis.

Justice Hari Shankar basically states that as the MRE does not explicitly call for vitiation of consent on part of the wife, one cannot assume that it encourages a husband to force sex on his wife.

As per the learned Judge, forcing sex on the partner is an exceptional act and is solely attributable to the perverse predilections of the husband. Yet again, this thought process betrays a lack of understanding about how structural aspects of patriarchy encourage spousal sexual violence.

An Opportunity Lost, and a Moment for the Supreme Court

The learned Judge had a golden opportunity to deliberate the supposed negative repercussions of the MRE being declared unconstitutional. He could have addressed how the procedure to deal with marital rape cases could be constructed differently so as to allay fears of misuse, and how to ease the process of reporting for the wife.

However, the entire opinion is replete with statements that only display how the learned Judge cannot even conceive of a reality where the wife does not consent to having sex with her husband.

The opinion takes us back to a time when the criminal justice system would refrain from delving into cases of domestic abuse in the name of “privacy of the marital bedroom”.

It is indeed saddening to read such an opinion from the halls of a High Court known for upholding the rights of an individual in the face of resistance from conservative ideals of society.

One can only hope that once this matter is considered by the Supreme Court, a humane decision will prevail. One that will view the wife through the prism of equality, and give as much importance to the wife’s right to bodily autonomy and dignity as it does to the husband’s right to sustain conjugal relations with the wife.

(Radhika Roy is an advocate based in Delhi and former Associate Editor at Live Law. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)