Rape and consent in marriage: Going beyond the split verdict of the Delhi High Court

The recent split ruling of the Delhi High Court represents the growing scope for criminalisation of marital rape. However, we are simultaneously confronted by the equally tenable possibility that criminalization in itself does not guarantee the enforcement of such a law.

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ON May 11, a Delhi High Court division bench delivered a split ruling on the legality of marital rape, paving the way for the issue to be taken up by the Supreme Court.

Justice Rajiv Shakdher held the exception under Section 375 of the Indian Penal Code ('IPC') that protects men who have non-consensual intercourse with their wives, from criminal prosecution as invalid. He reasoned that the exception is "steeped in patriarchy and misogyny" and "seems to convey that forced sex outside marriage is 'real rape' and that the same act within marriage is anything else but rape".

Justice C. Hari Shankar, on the contrary, defended the exception clause. In his observations, Justice Hari Shankar stated that "what distinguishes the relationship of wife and husband, from all other relationships of woman and man, is … a legitimate expectation of sex". He further postulated that it would be "equally unrealistic" from the point of view of a victim to presume that a wife trapped in non-consensual sex with her husband "would suffer the same degree of violation as a woman who is ravaged by a stranger".

The split ruling has elicited much concern. Yet again,  we are confronted by the limitations of the existing law, that is, its partial recognition of harm, hurt and wrong, borne by individual women. These notions are weighed in terms of both individual trauma/injury and the social loss borne by the survivor of rape, with the latter assessment explicitly focusing on the sexual dimension of the assault. In this way, the rape laws implicitly link individual consent and the survivor's experience to the question of community or family honour.

In response to such restrictive approaches of the law, there has been a growing endeavour by the women's movement to challenge the patriarchal legal paradigm of ascertaining and prosecuting rape. These efforts have opened up interesting prospects for assessing rape in more woman-friendly terms.

For example, there is an increasing tendency to emphasize the physical discomfort, displeasure and pain borne when identifying rape. The emphasis is deliberate because it facilitates the downplaying of the explicit focus on the sexual dimension of the assault. In fact, by creating an ambience in which rape is not identified by the notion of violating the innermost, private space of a woman but by the notion of displeasure and discomfort, it becomes more feasible to recognise marital rape.

Notably, critiques of rape laws and periodic revisions of the laws are part of a long, intriguing history of societal regulation of men's access to women's sexuality, and the appended disciplining of women's sexuality. For a serious analysis of the possibility of criminalisation of marital rape and the dilemma informing the Indian judiciary, it becomes important to situate these within the socio-legal history of rape. It is then worth noting how rape came to be gradually identified as a criminal sexual assault on a woman.

Also read: Criminalizing marital rape: When is an exception not an exception?

The changing notions of rape

The word 'rape' originates from the Latin verb rapere, which means to seize or take by force. It was initially defined as the abduction of a woman against the will of the man under whose authority she lived, and sexual intercourse was not necessarily a constitutive element.

Simply put, across historical conjunctures, the transition to more stratified forms of society nurtured conditions wherein the property to be withheld in a woman came to be her virginity. Consequently, rape came to be originally identified as a crime or tort of theft of property against the concerned woman's family and community, rather than an assault on a woman's body without her consent.

Significantly, in many legal treatises of the premodern era, the act of a man having sexual relations with another man's wife was deemed the highest invasion of property. Within such paradigm, a man could not rape his wife.

Denied any consent-giving authority or right to self-determination, women expectedly came to be punished for indulging in sexual activity without the permission of their families and communities. In instances of adultery, elopement with a lover, sexual liaisons before marriage, and so on, rather than the individual consent of the woman, the entitlement of the woman's husband or father was the determining factor.

By overriding the question of a woman's consent altogether, rape laws also came to deny marital rape. The law historically evolved within the logic that families arranging the marriage of a woman guaranteed her permanent or irrevocable consent to sexual intercourse.

It is only with time that in certain parts of the world, rape came to be defined in its modern sense so as to gradually exclude from its purview practices like elopement without parental consent. This historical development was closely linked to the emergence of the individual subject position.

In Europe, the period from the Renaissance onwards marked a break with older feudal laws as the municipal law of new towns came to assert the rights and status of the individual over the community. Appended wider socio-economic transformations also gradually weaned away individuals from the community structure. Amidst these new conditions, exercising individual choice when it came to seeking a partner became increasingly feasible. Even rape began to be seen more as an assault on a rights-bearing individual and less of a crime against a husband or a father.

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

In India, this important transition gradually materialised in the 19^th century, under the aegis of the colonial State's interventions. As colonial capitalism pressed forth with various institutional and legal changes that often challenged the system of traditional rights based on birth, a complex process unfolded to prevent the individual from sheltering in the anonymity of their community, and from escaping individual responsibility for contractual or other legal obligations.

It is within this complex process that the first signs of women being assigned an individual subject position began to surface. Litigation of the 19^th and early 20^th century amply reveal how the colonial State was imbricated in the process of identifying and establishing individual rights of women, whilst also seeking to balance these with the traditional rights of the family/community over individual women.

Over time, with further economic changes that loosened the hold of the restrictions imposed by caste and community, and with the entry of a greater number of women in the workforce, the individual rights of women attained greater realisation. Nevertheless, a woman exercising her choice and individual rights has been subject to constraint, for as the notion of consent devolved to the individual woman, the logic of proprietary or exclusive rights on the woman's sexuality has remained embedded in the mind-sets of a majority of men and women.

Expectedly then, in a society where marriage for a vast majority of women is the most common mode of economic sustenance and social existence, the total amount of non-consensual intercourse as well as bad consensual sex endured by women within marriage is huge – perhaps greater than in prostitution. It is within these prevailing discomforting realities that future legislative action must be debated. Not only do the dilemmas of the judiciary and law makers need to be contextualized, but even the question of women's unfettered access to a marital rape law requires close deliberation.

Also read: Marital rape biggest form of sexual violence against women & a cruelty, Delhi HC told

Marital rape: A civil wrong and beyond

Historically speaking, modern jurisprudence has evolved in ways wherein it reinforces patriarchal perspectives on women's sexuality, the sanctity of marriage and the 'compulsion' to shelter domestic affairs from the public gaze. For this reason, in several countries even today, husbands continue to be immune from prosecution in case of physical abuse against their wives.

In India, of course, prolonged struggles have ensured that domestic violence is punishable under Section 498A of the IPC. Nonetheless, State agencies like the police and the overall policy approach have been geared towards ignoring incidents deemed trivial or not 'serious enough' for legal intervention.

In more recent times, the approach of authorities has been marred by a preoccupation with allegedly false complaints of domestic violence filed by women; resulting in the growing demonization of women complainants, dismissal of initial complaints reported by battered women, as well as efforts to amend Section 498A.

Similarly, influenced by the patriarchal notions of familial izzat, the majority of Indian legislators and jurists harbour the view that the idea of marital rape is seemingly a foreign imposition, enjoys little cultural acceptability, and openly contradicts the widespread societal belief that such matters should be dealt with privately rather than by public authority. Accordingly, the persistent articulations of concerns on marital rape have been addressed within the paradigm of a civil wrong.

As per the Protection of Women from Domestic Violence Act, 2005, an indirect recognition of marital rape is now written into the logic of the law. However, though recognized, it cannot be tried as a criminal offence under Sections 375 and 376 of the IPC.

Seen as an act of cruelty, a woman is provided maintenance in conditions where she opts to live separately without annulling her marriage. Likewise, working within the paradigm of civil remedies, in instances where a marital rape survivor opts for annulment of the marriage, the law grants the woman the right to divorce on grounds of cruelty.

Also read: Time to criminalise marital rape

Limit of the law: The search for justice continues

Marking a shift from this status quo, the recent split ruling of the Delhi High Court represents the growing scope of criminalisation of marital rape. While such possibilities emerge, we are simultaneously confronted by the equally tenable possibility that criminalization in itself does not guarantee the enforcement of such a law.

The lack of public awareness, the reluctance of authorities to take action in spirit with the law, as well as pervasive gender norms that place wives in dependent positions vis-à-vis their husbands, will together make it an uphill task for the average woman to recognize spousal rape or feel confident that it will be addressed by law enforcement agencies.

Given the worrying precedents of how the local police and courts in India deal with domestic violence cases, can we expect a timely and sensitive tackling of marital rape cases under the provisions of criminal jurisprudence?

More importantly, can we overlook the compelling question of the efficacy of criminalisation of marital rape in a context of widespread non-recognition by Indian society of spousal sexual as well as general violence within marriage?

As we grapple with this apprehension, an even greater concern, especially from the point of the women's movement, is the issue of the lack of independent livelihood that scores of Indian women are entrapped by. Ultimately, for a law on marital rape to have a really liberating effect, women need to be in positions of financial independence, without which such a law stands to remain ineffective, especially when dependent conditions reproduce patriarchal social norms.

In the anxious bid to push through desired legal reforms, we cannot afford to make piecemeal reforms a means to an end. Criminalisation of marital rape is at best an intermediate demand. It needs to combine with a reinvigorated struggle against the prevailing socio-economic system that thrives on nurturing mass unemployment in order to acquire as much work possible from fewer people; rendering, of course, a vast number of women unemployed, trapped in poorly paid waged work, burdened by large quantum of unpaid work. Such conditions make women's dependence on the family for economic sustenance inevitable. What follows are compromises with forced sex and violence within marriage.

Hence, our contestation with the law cannot be oblivious of the fact that even if existing law is made to reconcile with the burgeoning discontent with women's oppression, there will still be a lack of access to legal remedies. Indeed, even with the strengthening of the notion of individual consent, the law will continue to elide the fact that consent is structured by relationalities, and that most women are not in the circumstances to exercise an active individual choice.

Our struggle against marital rape, therefore, fundamentally comprises of exposing anti-women rape laws as well as transforming the conditions of women's dependence on male partners.