Debate over marital rape: Talks of morality empty without equal rights for women

WHT alumni Shohini Sengupta (Louis Dreyfus-Weidenfeld and Hoffmann, MSc Law and Finance, 2014-15) shares her recent article on the debate over marital rape in India, reproduced here by kind permission of the author

The Justice JS Verma Committee in its report on the “Amendments to Criminal Law” in January 2013 recommended, in no unequivocal terms, that the preposterous exception to Section 375 of the Indian Penal Code should be removed. The committee went to great lengths to quote the UN Committee on the Elimination of Discrimination against Women (CEDAW), the Declaration on Elimination of Violence against Women 1993 (DEVW) — which specifically includes marital rape in the list of abuse and violence against women — the European Commission of Human Rights and the laws of innumerable countries including South Africa, England and Wales, Australia, and Canada.

The written submissions of the government in front of the Delhi High Court, however, have made some bizarre arguments. In one swipe, where it seems improbable and peculiar to the government that rape can be a realistic construct of any Indian marriage, they have relegated married women to the common law days of yore, where women were considered to be the property of men — either the father or the husband.

All property rights, economic rights, and of course laws regarding marriage, succession, and adoption reflect this.

This is, of course, far more pervasive in our society than we realise. Just take a look at any identity card that is issued by the government. The driving license has the prefix “son/daughter/wife of”, whereas, the Aadhaar card and the PAN card among other proofs of identification, equate a woman to a minor, or an incapacitated person, lacking the ability to sustain an independent identity of her own or having the legitimate power to associate her name to that of her mother’s.

Hence, it is perhaps not so surprising that the government asserts a parochial and patronising role in almost all other aspects of a decent human life. The way we treat our women is ostensibly the way we treat other disfranchised and marginalised communities in India be it our lesbian, gay, bisexual, transgender, queer or questioning, and intersex (LGBTQI) community or our children and pensioners. Of course, gender plays a huge role here, simply because marriages in India and, in fact, any relationship between men and women are fundamentally not equal given the power equations and the prevailing status quo on oppression.

The Centre’s principle argument that criminalising marital rape would lead to the “destabilisation of the institution of marriage” is an odd way to regulate and now proactively ‘protect’ an institution which is primarily problematic in India, not to mention rooted in cultural and social biases; nevertheless it’s something that the state should not have a mandate to protect, except perhaps the classes which ostensibly need their protection within such an institution — the women, and the children.

In an attempt to protect the institution of marriage, the State should not argue for the marriage automatically extinguishing the legal or sexual autonomy of the wife.

The other fallacious argument of the State is the presumption of harassment of husbands at the hands of their wives. The purported harm from not criminalising marital rape is completely eclipsed by a presumption against the argument, and reflects how much the State is removed from ground realities, and how badly it wants to reinforce the principle that a marriage means irrevocable consent to sexual intercourse.

There is no doubt that the law should evolve like a mature beast and incorporate checks against flagrant misuse by interested parties. However, a presumption of misuse of a law, in this case, is far outweighed by the harm caused by not having a law. A presumption of harassment of the husband cannot, and should not prevent the establishment from legitimising the right of the wife to seek justice from the criminal justice system for flagrant violations against her body.

The State’s argument, of “what may appear as marital rape to a wife, may not appear so to others”, is a conversation rooted in ‘conventional morality’ and completely undermines the autonomy of a class of people.

Of course, it is logically fallacious to argue that the assumption of a relationship changes the way we view rape itself. So, while an unmarried woman can be “raped” by a familiar person, the same familiarity of the relationship makes the same act not a “rape” in case of a married woman notwithstanding the fact that that any penetration that has happened without the woman’s consent; against her will; or, with her consent by threatening to kill or hurt her or any person she cares for, are components of the provision of rape as defined in the IPC.

The State should realise that reasons such as “poverty, illiteracy, vast diversity, and mindset of the society” cannot be used as reasons to undermine a citizen’s legitimate right to autonomy, the exercise of which was held to enable “an individual to attain fulfilment, grow in self-esteem, build relationships of his or her choice and fulfil all legitimate goals that he or she may set”; a right upheld by the Delhi High Court in 2009 in the context of Section 377 of the IPC.

The recent judgment on the Right to Privacy by the Supreme Court, of course, bolsters this argument by inextricably linking the Right to Privacy with the Right to Bodily Autonomy, and is right in stating that the argument of privacy can not be used “as a cover to conceal and assert patriarchal mindsets”.

In failing to uphold basic human dignity within the law itself, we signal to the wider moral and just society that they are under no obligation to do so, and we turn women into the hopeless, abused characters of a dystopian novel, simply claiming, “We were the people who were not in the papers. We lived in the blank white spaces at the edges of the print. It gave us more freedom. We lived in the gaps between the stories.”

In the larger narrative of morality, society and the institution of marriage, do not forget the women.

Shohini Sengupta (India, MSc Law and Finance) was a Louis Dreyfus-Weidenfeld and Hoffmann scholar in 2014-15