New Delhi: An August 2021 Chhattisgarh High Court judgment, Dilip Pandey & Ors. vS State of Chhattisgarh, observing that sexual intercourse or any sexual act by a husband with their spouse would not constitute rape even if it was forcible or against the consent of a legally wedded wife, has sparked outrage and criticism.
“Hope this is appealed in the Supreme Court”, tweeted Trinamool Congress MP Mahua Moitra. Gaurav Gogoi, two-term Congress party MP and deputy leader of the opposition in the Lok Sabha, said the “time has come for the Parliament of India to extinguish the legal shield to marital rape.” Married women, he added, can’t be forced “to have a sexual relationship by their husbands”.
Within a few days of their marriage in June 2017, Dilip Pandey’s wife alleged that he and his family began harassing her for insufficient dowry. She said her husband used to abuse her and forced her into having unnatural sexual relations, including by inserting his finger and a radish in her private parts, against her will.
When efforts at reconciliation failed, the wife filed a criminal complaint, including allegations of rape, against her husband. The trial court agreed to frame charges on all complaints, including sections 498A (a husband or relative of husband subjecting a woman to cruelty), 34 (acts done by several persons in furtherance of common intention), 376 (punishment for rape) and 377 (unnatural offences) of the Indian Penal Code (IPC) 1860, as well as section 498A against the in-laws.
After the charges were framed, Pandey and his relatives filed a petition in the Chhattisgarh High Court on the grounds that Indian law does not recognise marital rape. Justice N.K. Chandravanshi noted that the law on rape excludes marital rape under an exception that reads: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
In 2017, the Supreme Court partially read down this exception (Independent Thought vs Union of India), so that it applied only to wives who were 18 years and older. This meant that rape of a minor wife would not be exempt from criminal sanction under the marital-rape exception.
A limited recognition for marital rape as an offence can also be found under section 376B of the IPC that deals with rape when the husband and wife are living separately. The punishment for the offence is two to seven years, as opposed to punishment for rape, which is 10 years to life imprisonment, thereby treating the fact of marriage as a mitigating factor.
The Chhattisgarh High Court judgment comes days after a two-judge bench of the Kerala High Court upheld a family court’s decision to allow divorce on the grounds of marital rape because it constitutes physical and mental cruelty.
“In a married life, sex is reflection of the intimacy of the spouse, said the Kerala High Court. “The evidence given by the woman establishes that she was subjected to all sorts of perversion against her will. Marital rape occurs when the husband is under notion that body of his wife owes to him.”
Marriage As A ‘Sacrament’
One of the key recommendations of the Justice Verma Committee, set up in 2012 to reform criminal law, was to remove the marital-rape exception, in light of India’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women.
However, these recommendations were not included in the Criminal Law (Amendment) Bill, 2012, and subsequently not a part of the Criminal Law Amendment Act, 2013. Parliament chose to retain the exception, advocating for extra-legal solutions such as reconciliation to solve “problems” with the help of family members.
The 167th Parliamentary Standing Committee Report on Home Affairs on the Criminal Law (Amendment) Bill, 2012 noted: “...if a woman is aggrieved by the acts of her husband, there are other means of approaching the court…Family is able to resolve the problems and there is also a provision under the law for cruelty against women. It was, therefore, felt that if the marital rape is brought under the law, the entire family system will be under great stress and the committee may perhaps be doing more injustice.”
The opposition to criminalising marital rape remained over the years that followed. In 2015, replying to a question put to him by DMK MP Kanimozhi, the then minister of state for home Haribhai Partibhai Chaudhary told Parliament that marriage is a “sacrament” and the concept of marital rape cannot apply to India.
As of November 2020, only 36 countries in the world had not criminalised marital rape, reported The Leaflet. India is one of them.
The Evidence For Marital Rape
Since it is not a crime to rape a wife, the (NCRB) does not maintain any separate statistics on marital rape. However, bits of data have emerged like pieces of a jigsaw puzzle to paint a troubling picture.
In 2012, the NCRB said that 98% of all rapes are committed by persons known to the survivor, and this would presumably include husbands.
In 2018, an analysis by Mint, a newspaper, found that 99.1% of all sexual assault was unreported, and, in most of these cases, the perpetrator was the husband. On average, an Indian woman is “17 times more likely to face sexual violence from her husband than from others,” according to the analysis.
Domestic violence is the single largest crime against women. Data released in the latest National Family Health Survey (NFHS) in December 2020 found that more than a quarter of the women surveyed in seven states were subjected to domestic violence; in Karnataka 44.4% women surveyed said they had been subjected to it (up from 20.6% five years ago) while in Bihar the number had come down to 40% from 43.7%.
One in four men said they had raped a female partner, found a 2013 United Nations survey in six countries, including India. Another study by the United Nations Population Fund and the International Center for Research on Women found that for Indian men, masculinity is about “acting tough...controlling women”. That study found that 75% of men expected their partners to agree to sex; 50% expected their partners to take their permission before using contraception.
The Flaws Behind The Argument Against Criminalising Marital Rape
The opposition to criminalising marital rape is based on four arguments, Ayushi Agarwal, assistant professor at Jindal Global Law School, in the Economic and Political Weekly, wrote in August, 2021.
First, at the time of marriage women give irrevocable consent to sexual intercourse with husbands. Second, legal recognition to marital rape will sabotage the institution of marriage. Third, women will weaponise this law against their husbands. And fourth, alternative legal remedies already exist.
All these arguments stem from flawed assumptions.
The assumption of irrevocable consent stems from antiquated notions of women as the property/chattel of their husbands and cannot withstand the scrutiny of the right to equality and non-discrimination under Articles 14 and 15 of the Constitution.
Justice Madan Lokur in Independent Thought (a case concerning minor wives) noted in October 2017 that the wife “cannot be treated as a commodity having no say over her body”, and that she had the right to deny sexual intercourse to her husband. In September 2018, Justice D Y Chandrachud held in Joseph Shine vs Union of India, in the context of adultery that “Marriage—whether it be a sacrament or contract—does not result in ceding of the autonomy of one spouse to another.”
Justice Chandrachud emphasised that the court had an obligation to inquire into the insidious suffusion of patriarchal values within the legal order by scrutinising provisions that entrench gender discrimination based on a regressive view of women’s sexual agency.
Justice Rohinton Nariman in his concurring opinion in Navtej Johar vs Union of India, held in September 2018 that no presumption of constitutionality attaches to a pre-constitutional statute like the IPC, which was made under a colonial British regime. This makes the constitutionality of the marital rape exception even more suspect.
But even the courts have tread cautiously when it comes to the second argument that criminalising marital rape will sabotage the institution of marriage.
In Harvender Kaur vs Harmander Singh Choudhry, the Delhi High Court in November, 1983 upheld the constitutionality of the remedy of restitution of conjugal rights and noted that, “in the privacy of the home and the married life, neither Article 21 (right to life) nor Article 14 (right to equality) have any place ... the cold principles of constitutional law will have the effect of weakening the marriage bond”.
In August, 1984, the Supreme Court agreed with this formulation in Saroj Rani vs Sudarshan Kumar Chadha, holding that the remedy for restitution of conjugal rights under section 9 of the Hindu Marriage Act,1955 “serves a social purpose as an aid to the prevention of break-up of marriage.” Under this section, courts can pass orders forcing married couples to live together.
However, this reasoning does not hold water given the articulation of Justice Chandrachud’s opinion in J. K.S. Puttaswamy (Retd.) vs Union of India & Ors (2017), holding that “privacy must not be utilised as a cover to conceal and assert patriarchal mindsets.”
Thus, the state cannot be prevented from intervening under the garb of “privacy” when it comes to safeguarding rights in the domestic sphere. Justice Chandrachud framed privacy for women as both a tool for emancipation as well as oppression, noting that “the challenge in this area is to enable the state to take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty.”
The provisions in the IPC do the exact opposite of this.
While denying women protection against marital rape, they also interfere in the intimate decisions of consenting adults by resorting to section 377 which prohibits unnatural offences.
The Gujarat High Court in Nimeshbhai Bharatbhai Desai vs State of Gujarat had held in April, 2018 that “Consent is not a determining criterion in the case of unnatural offences and rather any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under section 377 of the IPC.”
The Chhattisgarh High Court judgment in Dilip Pandey, while charging the husband under section 377, reasons that the insertion of a radish or fingers into the private parts of the complainant is not unlawful because of the lack of the wife’s consent but because the act constitutes “carnal intercourse against the order of nature” when the “dominant intention of the offender is to derive unnatural sexual satisfaction (by) repeatedly insert(ing) any object in the sex organ of the victim and consequently derive sexual pleasure”.
In this way, the state selectively interferes in the private sphere to criminalise acts between consenting adults that it regards as “unnatural” or to enforce cohabitation of married couples under the restitution of conjugal rights or to police who you are allowed to marry via love-jihad ordinances (see here). Its interference is, however, guided by social morality and not a rights-based framework that safeguards women’s sexual autonomy.
Justice Indu Malhotra in Joseph Shine held that regressive practices to protect the so-called sanctity of marriage (such as the criminalisation of adultery) constitute an illegitimate state interference and go against Articles 14 and 15 of the Constitution. Further, the Law Commission of India’s 243rd Report on Section 498A, published in 2012 noted that “the value to be attached to the rights of women are no less than the value to be attached to the family as a unit and vice versa”
The third argument, argued Mrinal Satish, professor of law at the National Law School of India University, Bengaluru, is rooted in the assumption that women are habitual liars with no credibility. “If fabrication is actually a major concern, safeguards should be provided against fabrication, rather than not criminalising marital rape,” he wrote.
The issue of misuse of the law must be separated from the reality and prevalence of marital rape against women, which highlights the need for its criminalisation. Advocate Indira Jaising has written in the context of domestic violence: “When the disadvantaged use the law after centuries of exclusion from the legal system, they are charged with “misusing” the law, as there was never meant to be a law for them at all.”
Finally, the alternative legal remedies cited to obviate the need to criminalise marital rape are cruelty under section 498A, IPC and domestic violence under the Protection of Women from Domestic Violence Act (PWDVA) 2005. Ayushi noted that while the definition of domestic violence is broad enough to include sexual, emotional and economic abuses, it prevents married women from being able to get criminal convictions for violation of their basic sexual autonomy and denies them the right to equal treatment under the law.
In Dilip Pandey, the Chhattisgarh High Court found no infirmities with respect to the charge under section 498A because the written report and statement of the wife proved that after a few days of marriage she had been subjected to cruelty by the husband and his relatives on account of demands related to dowry.
However, the threshold for conviction under this section is extremely high, requiring conduct repeated over a period of time by the accused and likely to drive the wife to suicide or cause grave injury or danger to her life, limb or health; or harassment in relation to dowry. In Bomma Ilaiah vs State of Andhra Pradesh (2003), the husband used to have forced sexual intercourse with his wife and inserted a stick and his fingers in her vagina causing severe pains and bleeding, making the victim unconscious. Despite this, he was not charged under section 498A.
Currently, two private member bills to criminalise marital rape, moved by Kanimozhi Karunanidhi in 2015 and Shashi Tharoor in 2019 respectively, are pending in Parliament.
The constitutionality of the exception has been challenged before the Delhi High Court in the ongoing case of RIT Foundation vs Union of India. Advocate Karuna Nundy, while representing the petitioners in the case, has argued that marital rape has been criminalised in 52 jurisdictions and is unconstitutional for being discriminatory towards married women.
However, the union government has continued to argue in favour of retaining the exemption to protect the institution of marriage.
The Chhattisgarh High Court judgment is the latest reminder that the exception needs to be wiped off of our statute books at the earliest.
(Anupriya Dhonchak is a Rhodes scholar and a Bachelor of Civil Law candidate at the University of Oxford.)
Previously on Article 14: