Does a marriage equal to a woman acceding to forgo her rights? Women lawyers believe the Centre's arguments in favour of not criminalising marital rape points to exactly that.
"The government has consciously chosen to perpetuate the idea that women forfeit their rights when they marry. It gives zero value to consent if you're married... That’s precisely why it’s unequal and patriarchal – and is not in consensus with the rights the Constitution has guaranteed to an Indian woman," says Delhi-based Supreme Court (SC) lawyer Thulasi K Raj.
In a 49-page affidavit submitted to the SC on Thursday, 3 October, the Centre opposed the criminalisation of marital rape, stating that it would affect the "sanctity of the institution of marriage".
"...a husband certainly does not have any fundamental right to violate the consent of the wife, however, attracting the crime in the nature 'rape' as recognised in India to the institution of marriage can be arguably considered to be excessively harsh and therefore, disproportionate."Excerpt from the Centre's affidavit
The Union Home Ministry further stated that while a man should face "penal consequences" for raping his wife, criminalising it may impact the "conjugal relationship" and will lead to "serious disturbances in the institution of marriage."
The Centre's stance brings back one important question – Why is India yet to criminalise marital rape? The Quint speaks to lawyers to decode.
But First, What Did the Govt Say?
Section 375 (exception 2) of the now defunct Indian Penal Code (IPC) and Section 63 (exception 2) of the Bharatiya Nyaya Sanhita (BNS) states,
"Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape."Exception 2 of Section 63 in BNS
While rape within marriage is a crime in more than 100 countries, India is among the 36 nations where it is not illegal. That hasn't changed despite multiple petitions filed in various courts across the country to criminalise marital rape.
In May 2022, the Delhi High Court had pronounced a split verdict on the case. You can read more about this here. Post this, the SC accepted to hear a larger challenge.
While in 2017, the Centre had said that marital rape could not be added as an offence as it could have a “destabilising effect on the institution of marriage," in 2022, it said that the “issue needs wider consultations."
Now, the government has opposed the criminalisation of marital rape on three arguments:
Sex within marriage is based on "reciprocal conjugal rights," which is “incomparable” to the concept of "consent" in any other situation outside marriage
Removing the exception would interfere with the “institution of marriage”
There are already existing remedies including criminal law provisions such as "Sections 354 (assault), 354A (sexual harassment), 354B (criminal force), 498A (domestic cruelty), Domestic Violence Act etc to ensure serious penal consequences for such violations"
Adding to this, the Centre said that the judicial elucidation of 'consent' will vary in case of marital relationships.
"It is submitted that marriage does not obliterate the concept of consent but the understanding and the judicial elucidation of the concept of 'consent' would vary in case of a marital relationship when compared to any other relationship (or lack thereof) outside the institution of marriage."
'Problematic Stance... Ignores A Woman's Bodily Autonomy'
According to a slew of women lawyers, this was violative of woman's dignity and bodily privacy, adding that it creates a "legal shield" against penal consequences for a husband who commits non-consensual, violent, and forced sex.
Radhika Roy, a lawyer with interests in gender justice, said that the Centre's affidavit ignores a "woman's agency and right to bodily autonomy."
"By terming sexual offences in the confines of marriage as something that is not 'rape,' the Centre’s approach diminishes the physical/mental trauma attached with rape. Rape by a stranger and rape by your husband should not have distinctions. At the end of the day, it is the woman whose autonomy is being violated, regardless of the status of the perpetrator," Roy said.
The government's stance also overlooks what data shows. According to the National Family Health Survey-5 (NFHS-5), nearly 83 percent of women aged between 18 and 49 have suffered some form of spousal abuse, and around 13 percent report a former husband as perpetrator.
The survey adds that only 14 percent women who have experienced such violence have been able to seek help to stop the violence.
According to Shraddha Chaudhry, assistant professor at BML Munjal University in Gurugram and PhD researcher (law), University of Cambridge, the marital rape exception creates a legal fiction that all sex within marriage is "consensual."
"If you look at the rape law, while the rest of the provision is centred on consent, this exception (marital rape) does not talk about consent at all. It creates the legal fiction that a wife always consents to her husband, or that her non-consent is irrelevant. Legal fiction is when the law deems something to be a certain way when in reality, it isn't, so it creates a fiction and state of affairs that don't exist."Shraddha Chaudhry
Patriarchal Belief & Notion of 'Sanctity of Marriage'
Throughout the affidavit, the Centre uses one phrase to oppose the criminalisation of marital rape – that it will have "far-reaching effects on the institution of marriage."
"It (striking down exception 2) may severely impact the conjugal relationship and may lead to serious disturbances in the institution of marriage, in the fast growing and ever changing social and family structure, misuse of the amended provisions can also not be ruled out, as it would be difficult and challenging for a person to prove whether consent was there or not."Centre to SC in affidavit
According to legal experts, the Centre's affidavit ignores the lived realities of women and agreed that the exception violated Articles 14 (Right to Equality), 15, 19, and 21 of the Constitution, potentially transforming women’s rights in India.
Roy told The Quint that the bogies of “false allegations” and “preservation of family life” play a huge role in "undermining the horrors that women face in patriarchal families."
"The Centre wanting to clothe a marriage with 'sanctity' should castigate such physical violations taking place between a husband and wife even more," she said.
Chaudhry told The Quint:
"I'm not going to deny that marriage is a socially relevant institution. It's important in many ways. The law, and many rights, are often built around the marriage relationship. But surely parent-child relationships and sibling relationships are also important. But if there was a criminal offence between a father and a child, or between siblings, would we still think that the nature of the criminal offence changes simply by the virtue of the relationship?"Shraddha Chaudhry
The common rationale is that criminalising marital rape would "destroy the institution of marriage". But lawyers pointed out how the SC rejected this claim in Independent Thought v. Union of India (2017).
The court had then observed, “Marriage is not institutional but personal – nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable.”
"A division bench of the SC rightly observed in a 2017 case that marriage is not an 'institution' but a private relationship, and it will not be 'destroyed' by the recognition of martial rape," said Chaudhry.
"If it's true, however, that criminalising marital rape will destroy the institution of marriage, what does that tell us about this so-called institution? Certainly, the marriage relationship might need to change, but It's ludicrous to say that we shouldn't recognise a criminal offence for what it is just because we believe, without any evidence by the way, that this 'institution' will be affected."
She added that it also comes from an "unwillingness to question and change things. "I think it's a 'we are in a comfortable space, this is how we've been doing things for years, so why change it?' mindset. Upon marriage, a wife’s right to personal and sexual autonomy, bodily integrity and human dignity are surrendered. And these are values at the core of the Constitution – how are we unable to see that anomaly?" she said.
Consent: Spouse vs Strangers
The government asserted that while consent is foundational, breaches of this in marriage should be dealt with through less severe penalties than the "ghastly” provisions applied to cases involving strangers.
“In an institution of marriage, there exists a continuing expectation, by either of the spouse, to have reasonable sexual access from the other. Though these expectations do not entitle the husband to coerce or force his wife into sex. At the same time, it is submitted, these obligations, expectations and considerations, which are completely absent in the case of a stranger who seeks sexual congress, or even from any other intimate relationship, constitutes as a sufficient basis for the Legislature to distinguish qualitatively between an incident of non- consensual sex within the marital sphere and without it.”Indian government
The government also said that one must resort to existing remedies provided by the Parliament, including criminal law provisions to protect consent within marriage.
"The provisions cited by the government relate to sexual assault or use of criminal force, as the affidavit maintained that these provisions represent the 'sufficiently adequate remedy' and the 'delicate balance' that Parliament has sought to maintain," it said.
Legal experts opined that the belief that non-consensual sex within marriage is in some way different from non-consensual sex outside marriage is premised on an archaic view that marriage renders women their husband’s property.
Speaking to The Quint, Thulasi K Raj said,
"It seems inconsistent. It feels evasive as a response to say that there are other provisions. No other provision compares to the marital rape exception. There are other provisions which protect women in other ways, I admit. But we are speaking about a specific provision of rape and a specific provision of rape within marriage... The only thing that protects men from committing such a crime is this provision. No other provision will be of any solace to a woman who is a survivor of rape."Thulasi K Raj
Agreeing to Thulasi, Chaudhry said that the government's stance, though admits to providing remedies, "does not recognise the offence as such."
"They are, in effect, saying that just because some related or component offences are recognised, there is no need to recognise this particular offence, and that is neither a good argument nor is it consistent with our law. It's true that we have criminal remedies of domestic violence, cruelty and the use of criminal force or the civil remedy of divorce, but they are not the same as recognising the offence of 'rape', because that offence has a much stronger signalling effect, as well as harsher penalties. We have specific offences for gangrape, as well as rape which leaves the victim in a vegetative state, rape by a husband when he is separated from his wife- why have these separate offences been recognised when rape was already an offence, and victims would have had remedies under that provision? Clearly it is because of the signalling function and because this enables us to give appropriate penalties depending on the act that takes place."Shraddha Chaudhry to The Quint
"If the fear is that there will be false allegations, that's not a problem unique to sexual or gender sensitive offences, we see false allegations being made during property disputes and political disputes as well, but that is no reason not to recognise something that should be a criminal offence if there are other good reasons to do so. This is a strange place to exercise restraint – where there is an obvious offence, an act that is wrong and punishable in all contexts but marriage."
Roy added that statistics "demonstrate that false allegations are a drop in the ocean when it comes to their ratio against actual cases of sexual harassment and assault."
'It's A Socio-Legal Issue Which the Court Must Address'
The Centre, in its affidavit, argued that the matter was more of a "social than a legal issue" and that a decision cannot be taken "without proper consultation with all the stakeholders" or taking the views of all the states into consideration.
"This bifurcation between social and legal issues is ferocious. Every legal issue will have social ramifications and vice versa. The government has said that the issue is in the ambit of the legislature, which I don't think it is. When you see an unconstitutional law, the judicial forum is the right forum where you can challenge it," said Thulasi.
She added that instead of opposing the pleas for criminalising marital rape, "it (government) should introspect on what it wants to do about certain litigations which directly infringe on fundamental rights. The government doesn't always have to take an opposing stance."
Meanwhile, Chaudhry told The Quint that the government must look into addressing the barrier in seeking remedy in marital rape.
"The marital space does create issues in reporting and prosecuting crime – not only because of the nature of the offence but because of the way that the functionaries in the criminal justice system think of these things. But barriers in seeking justice need to be fixed by the government by providing better training to their functionaries and creating appropriate safety nets."
All three lawyers The Quint spoke to said it was time the SC looked into the matter seriously.
Roy said it is important to "start inculcating the thought process that a woman can be more than just being a wife or a mother once she is married."
"She (woman) is not merely an object to be utilised for reproductive and domestic purposes. She is first an individual that has complete bodily autonomy, and she has complete agency to decide when she does and when she does not seek to engage in sexual relations with her husband...." she concluded.
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