Justice C. Hari Shankar’s defence of marital rape is a homage to patriarchy

Justice C. Hari Shankar's judgment flies in the face of how issues of privacy and dignity have evolved over the last couple of years. It clings on to a severely dated understanding of privacy, dignity, and what a marriage is supposed to entail for a woman.

——–

LAST month, a division bench of the Delhi High Court delivered a split verdict in relation to a group of cases in which the constitutional validity of the marital rape exception in the Indian Penal Code was challenged.

In brief, Section 375 of the Indian Penal Code ('IPC'), which defines the offence of rape, has two exceptions attached to it. While the first exception deals with medical procedures, the second exception provides that sexual intercourse between a man and his wife shall not constitute rape as long as the wife is not under fifteen years of age. By judicial dicta, the threshold of fifteen years has been rephrased as 'eighteen years'. Thus, in effect, this exception immunizes men from the charge of rape when they rape their wives as long as the wife is not under the age of eighteen.

Justice Rajiv Shakdher found this exception of marital rape to be violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution. On the other hand, Justice C. Hari Shankar held that this protection extended to men is justified.

Justice Shakdher's judgement is remarkable as it is the first clear judicial assertion regarding the patent unconstitutionality of the marital rape exception. However, at the same time, it is also a predictable judgment when one looks at the Supreme Court's jurisprudence on issues of autonomy, agency, and privacy over the last few years. Judgments that resulted in decriminalization of adultery, decriminalization of homosexuality and assertion of privacy as a fundamental right have created a constitutional climate where the marital rape exception is grossly incongruous and logically unsustainable.

On the other hand, Justice Hari Shankar's judgement flies in the face of how the issues of privacy and dignity have evolved over the last couple of years. In fact, there is an argument to be made that while Justice Hari Shankar's judgment preserves the existing status quo, it is the more audacious of the judgments in the sense that it stubbornly refuses to acknowledge that it is 2022 and not 1922. It clings on to a severely dated understanding of privacy, dignity and what a marriage is supposed to entail for a woman.

Also read: Supreme Court refuses to stay Karnataka High Court order declaring marital rape exception as not absolute, to hear husband's appeal in July

The 'stranger' argument

Much of Justice Hari Shankar's rhetoric rests on his claim that being raped by a stranger is not the same as being raped by one's husband. He contends that as a relationship, marriage entails a higher degree of confidence. According to him, in such a relationship, for the husband to be branded as the rapist of his wife would be antithetical to the institution of marriage. Elsewhere in the judgment, he asserts that he is in no position to assess if striking down the exception of marital rape will have positive or negative impact on the institution of marriage and that this is a decision which should be left to the wisdom of the legislature.

The inconsistency aside, his judgment displays an acute lack of sensitivity towards the trauma of victims who are raped by their husbands. To create a blanket hierarchy of rape victims depending on the identity of the perpetrator, and then to suggest that being raped by one's husband is the lesser evil, is to deny married woman their intrinsic dignity.

Additionally, his judgment also overlooks the social reality of India, where husbands are often no better than strangers at the time of marriage. A survey in 2018 showed that more than 90 per cent of marriages in India are arranged by parents. Generally, women are denied the freedom to choose their life partners, and the entrenched culture of conservatism often precludes any meaningful relationship to develop in the time between an engagement and the wedding. The mere factum of a wedding ceremony cannot create a relationship of high confidence which Justice Hari Shankar eulogises. To contend that a woman who is raped by her husband a couple of days after the marriage is not raped by a stranger is to wilfully ignore the complex social reality of marriages in India.

Also read: Amicus Curiae explains before Delhi HC why exception to marital rape should be struck down

Legitimate expectations

On multiple occasions in his judgment, Justice Hari Shankar asserts that with marriage comes the legitimate expectation of sex. In fact, he contends that this legitimate expectation of sex by the husband operates as a mitigating factor as regards his culpability for disregarding the consent of his wife when contrasted with a similar act by a stranger who has no such legitimate expectation of sex. He further declares that "where the parties are married, the woman has consciously and willingly entered into a relationship with the man in which sex is an integral part".

Firstly, as we have already seen, the proportion of marriages in India where a woman willingly chooses her husband is marginal. Secondly, even when a woman marries out of her free choice, she consciously and willingly enters into a relationship where consensual sex is an integral part. In his formulation of what the husband can legitimately expect from his wife in terms of sexual relations, Justice Hari Shankar omits this crucial element of consent. What the husband acquires due to the status of being married is the legitimate expectation of 'consensual' sex and not merely the expectation of sex (regardless of the wife's consent).

Also read: A critical analysis of the constitutionality of the non-criminalisation of marital rape in India

Marriage as a sanctuary of inequality

In formulating the husband's expectation of sex without the wife's consent, marriage becomes a space where a married woman's consent matters less than that of an unmarried woman. In this conception, marriage becomes an institution of subjugation and not an empowering relationship. This perspective imagines marriage as a site where regular Director of the Centre on Law and Public Policy.norms of dignity and agency are lost. In the guise of privacy for the institution of marriage, we create a sanctuary of inequality and normalize conduct that would not be acceptable otherwise.

It is strange that while Justice Hari Shankar recognizes rape as an offence not simply about lust but also an assertion of power, he overlooks the power imbalances which are ingrained in the institution of marriage in a patriarchal system, and how the act of a husband raping his wife is also not simply about satisfaction of sexual urges but an exercise of power. The absence of this acknowledgment regularises practices of discrimination and oppression against women in marriage.

While it is true that marriage requires privacy, it is ridiculous to stretch that requirement to the point of creating a space where inequality within marriage is fostered and protected. Privacy concerning marriage is enjoyed by both the husband and the wife vis-à-vis the rest of the world. It cannot operate as an immunity card when the husband violates the wife.

Also read: Making Marital Rape a crime does not destroy the institution of marriage

Reluctance to admit rape

Several times in his judgment, Justice Hari Shankar uses the rhetoric that in a marriage, a woman retains her sexual autonomy and that it is wrong to have forcible sexual intercourse with one's wife. He admits that the woman has the right to say no in relation to sexual advances by the husband. However, there is a clear reluctance to admit that a husband having sex with his wife without her consent is rape. Instead, according to Justice Hari Shankar, a raped wife has other remedies such as Section 498A of the IPC and the provisions of the Protection of Women from Domestic Violence Act, 2005. While the offence of cruelty under Section 498A carries much lesser punishment than the offence of rape, the latter is civil legislation and carries no criminal sanction.

One realizes that while Justice Hari Shankar acknowledges the sexual autonomy of a married woman, sparing the husband, the label of being a 'rapist' is of greater concern for him. This becomes clear from the following observation:

"Introducing, into the marital relationship, the possibility of the husband being regarded as the wife's rapist, if he has, on one or more occasion, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law."

Justice Hari Shankar merits a law that concerns itself more with hiding rape by disallowing the use of the very term and places greater value on what a husband may be called than on what a married woman has had to endure.

Also read: Marital rape a good ground for divorce: Kerala HC

The question of power

Most perplexing and most revealing is Justice Hari Shankar's attempt to speak for women who may have been raped by their husbands. According to him, it is unrealistic to contend that a married woman who had to suffer through non-consensual sex with her husband is likely to feel the same amount of outrage as she would have if the person were not her husband. He also finds it hard to believe that a married woman would prosecute her husband for rape.

A simple question arises. Instead of speculating, why not let women make that choice? Why not leave it to a married woman whether she wishes to prosecute her husband for rape? Why not let a woman decide the degree of outrage she feels when her husband has sex with her forcibly?

The question itself is the answer. A legal principle that supports patriarchy cannot risk letting women have this choice because this choice represents power; the power to rewrite the unequal terms in which the space of marriage operates. This choice would mean that the fate of the offending husbands would depend on their wives. That possibility does not serve patriarchy.

Also read: Exception to marital rape ought to go in order to enhance substantive equality, Delhi HC told

Justice Hari Shankar reiterates multiple times that the objective of the marital rape exception is to save the institution of marriage. There is nothing wrong with the objective of trying to save the institution of marriage. The problem is in trying to save the institution of marriage, not by looking to stop marital rape, but by looking to stop women from holding men responsible for it.