Ajita Sharma

| @ | April 11,2019

AT a conference that was organised recently by a law school in Bangalore, the former Chief Justice of India Dipak Misra spoke out against the criminalisation of rape within marriage (marital rape) saying it would create “absolute anarchy in families”.

Misra said he believed that it was family values that helped our country sustain itself and criminalising marital rape would destabilise that family platform. But the former Chief Justice’s remarks, as shocking as they may seem,  are not new. The 167th Parliamentary Standing Committee Report on Home Affairs on the Criminal Law (Amendment) Bill of 2012  – a report often quoted by our lawmakers –  warns that ‘the entire family system will be put under great stress… it would be doing more injustice’  if marital rape was recognised as a crime.

This often-cited argument is not just acutely fallacious but is also an assertion of a patriarchal mind-set.

 

Marital rape vs marital privacy

 

The argument that criminalisation of marital rape will lead to ‘anarchy’ or ‘stress’ in families is simply a justification of the State to allow spousal domestic violence to go unpunished by bracketing forced sexual violence under the all-encompassing right to marital privacy where the intrusion of the State would be unwarranted. But rape within marriage itself indicates discord and violence in a marriage and the family would already be under so-called ‘stress’. The threshold of violence within a marriage in the form of marital rape would already have been crossed necessitating the State to intervene for it to no longer remain a ‘private matter’.

 

 

In this regard, the observations of the Supreme Court in its judgment in 2017 in Justice KS Puttaswamy (Retd) v. Union of India are relevant. “Gender violence is often treated as a matter of family honour resulting in the victim of violence suffering twice over – the physical and mental trauma of her dignity being violated and the perception that it has caused an affront to honour… privacy must not be utilised as a cover to conceal and assert patriarchal mind-sets”.

A legal provision criminalising marital rape cannot only act as a deterrent to marital rape, but must also give the wife, subjected to the forced sexual violence, leverage to end that violence within the space of her husband and marital family. If the exception to marital rape is not removed it will continue to violate the fundamental rights of the wife guaranteed under the Constitution, which cannot be divorced from the concept of marriage, including the rights of individual dignity, personal and sexual autonomy, right to consent and bodily integrity.

Also read: Why Shashi Tharoor’s private member Bill demanding criminalisation of marital rape is a step in the right direction

 

Marriage within a constitutional regime

  

In another 2018 judgment of the Supreme Court in Joseph Shine v. Union of India, Justice D Y Chandrachud rejected the argument that justified the denial of sexual agency of women in order to preserve the sanctity of marriage. “Marriage in a constitutional regime is founded on the equality of and between spouses. Each of them is entitled to the same liberty which Part III guarantees. Each of them is entitled to take decisions in accordance with his and her conscience and each must have the ability to pursue the human desire for fulfilment,” he said

Justice Chandrachud said familial structures could not be regarded as private spaces where constitutional rights were violated.  “…to grant immunity in situations when rights of individuals are in siege, is to obstruct the unfolding vision of the Constitution” and hence it becomes imperative to intervene when structures of injustice and persecution deeply entrenched in patriarchy destroyed constitutional freedom.

The sexuality of a woman, he said, was part of her inviolable core and neither the state nor the institution of marriage could disparage it.

 

Family Values

 

The concept of  “family values” that the State claims to want to maintain and is described as intrinsic to Indian culture, in actuality places an immense burden on the wife to protect the marriage at whatever cost.  It reinforces the idea of a validated space for a woman’s existence as a perpetual victim who bears all the violence, including from her husband, to protect her family. Women’s experiences of trauma and pain caused by sexual violence remains invisible whereas men are seen as naturally and biologically active, assertive, and aggressive in sexual affairs and are deemed to possess uncontrollable sexual desires. In such a situation ‘sex’ is seen as a wifely duty; there is really little scope for women’s understandings of independent consent.

 

 

These ideas and practices are only a tactic to assert masculinity and are deeply entrenched in patriarchy. Isn’t it time to question these “family values” which lead to inherent unequal power relations within a marriage and which ignores the wife’s autonomy over her body? Why is it only left to women to protect family values? Should there be no recourse in law to wives to protect themselves from sexual violence within her own home from her husband?

 

The Institution of Marriage

 

This argument fails to recognise the difference between the family system and the union of marriage. In Independent Thought v. Union of India, Justice Madan Lokur, though deciding on the challenge of the provision of marital rape for a minor wife below the age of 18 years, said “marriage is not institutional but personal – nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable”. A divorce may destroy a marriage, but it does not have the potential of destroying the institution of marriage or the family system.

Similarly, if the logic was that marital rape as a crime could destroy the institution of marriage, then divorce and judicial separation should also be prohibited if no distinction existed between the ‘institution of marriage’ and ‘marriage’. It is therefore essential to understand that wives are not sexual slaves of their husbands and getting accustomed to forced sexual intercourse is certainly not a “family value” one should preserve in order to protect the “family platform”.

 

 

Also read: Why Shashi Tharoor’s private member Bill demanding criminalisation of marital rape is a step in the right direction

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