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FYI 17th September, 2020

How Indian Law Understands Rape In Heterosexual Marriages.

Indian men have complete immunity from raping their wives. According to exception 2 of Section 375 “sexual intercourse or sexual act by a man with his own wife, the wife not being 18 years, is not rape.” In the case of RTI Foundation v Union of India, a petition was filed by All India Democratic Women’s Association and the RTI Foundation to criminalize exception 2 of section 375 as it violates article 14, 15, 19 and 21. The petition was dismissed on the grounds that criminalizing marital rape would destabilize the marriage, it would violate right to privacy and could be used by women to harass men. The reasoning of the court was heavily flawed, obnoxious, and patriarchal. What is more disappointing is the misogynist reactionary stand of the government on the case. 

Rape laws are understood in sexual polar form i.e. they are not gender neutral and works on disparity of power between women and men. The penis is understood to be superior to the vagina and men use it as a tool to punish women who do not succumb to them and challenge their power. The understanding of act of rape as an act of violence against women leads to female victimization which further weakens the status of women. 

The problem lies within the understanding of sexual intercourse within marriage.

The problem lies within the understanding of sexual intercourse within marriage. Most of the personal laws treats sexual intercourse as marital obligation, as held by Justice Gambhir in the case of Shashi Bala v Rajiv Arora, “That the twain shall become one flesh, so that they are no more twain but one’ is the real purpose of marriage and sexual intercourse is a means, and an integral one of achieving this oneness in marriage.” Heterosexual marriage is viewed as a system where wives gets access to matrimonial privileges in exchange of sexual cohabitation. In the case of Savitri Pandey v. Prem Chandra Pandey the wife filed for divorce on grounds of desertion and cruelty. The court held that initiating sexual intercourse within marriage is an essential for cohabitation and not allowing it is an element of desertion under section 13 (1) (vii) and since wife refused sexual cohabitation, she was held to be taking advantage of her own wrong and dismissed her plea for divorce. Again, in the case of Shakuntla Kumari v Om Prakash Ghai the Delhi High Court said, “a normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage”. 

Heterosexual marriage is viewed as a system where wives gets access to matrimonial privileges in exchange of sexual cohabitation.

Another problem with understanding of sexual intercourse within marriage is that personals laws patriarchal understanding of sexual intercourse view women as property. The law only protects the husband’s interest in his wife’s fidelity and the father’s interest in his daughter’s virginity and completely ignores the sexual interest of women. The English jurist, Sir Mathew Hale on explaining sexual violence within marriage, quoted, “the husband cannot be guilty of rape committed by himself upon his lawful wife, for their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” Women is considered a property of father before marriage and after marriage all the rights of father on his daughter is transferred to husband. For example, as long as the husband is having willful or unwilful sex with his property it is considered acceptable but the moment, he enters into relation with some other woman he commits offense against other man’s property and that is why adultery was criminalized.

On the other hand, a wife’s act of entering into an adulterous relationship is punished by depriving her of matrimonial privileges. According to Talaq-e-Sunnat, talaq can be revoked by resumption of sexual cohabitation by the husband. Even in the cases of restitution of conjugal rights courts have considered attempt to resume sexual relations by husband as reconciliation effort and since marital rape is not a crime resumption of sexual relation with or without the will of women is considered reconciliation on the husband’s part. And if a wife refuses to resume sexual cohabitation, she will be liable for cruelty on the husband which can be used by the husband as grounds for divorce and avoiding the maintenance claim. 

Courts fail to recognize that right to privacy and dignity does not dissolve after marriage.

Another problem with understanding of rape within marriage is the constitutionalisation of the  Restitution of Conjugal Rights. It is just another statutory provision that subjects women to rape. RCR was bought through precedents set in British colonial courts. Quintessentially for husbands the prerogative power of the RCR is not just to violate wife’s autonomy, personhood and privacy but also the power to protect their mark of patriarchal dominance. According to feminist scholars RCR deprive women of her autonomy, personhood, and privacy by denying them sexual agency which in turn lead them to be raped by their husbands. T. Sareetha vs T. Venkata Subbaiah was a very progressive judgement recognizing reproductive rights of women and provided protection to women from unwilful sex within marriages by making section 9 of Hindu Marriage Act (restitute conjugal rights to spouses) unconstitutional. This decision was overruled by a supreme court bench in the case of Saroji Rani v. Sudershan Kumar, thus making section 9 constitutional again. The court again did not consider the sexual agency of the wife.

Most of the cases work on the approach of wife’s fidelity and obedience to husband which categorize women as property of man. Forcing a reconciliation through cohabitation denies women the right to bodily integrity, privacy, equality, liberty, the right to live with dignity and the freedom of life. Courts fail to recognize that right to privacy and dignity does not dissolve after marriage. Forcing cohabitation between spouses would certainly lead to forced marital sexual intercourse. The right to consent to sex moves from the spouse to the state and takes away women’s sexual agency. 

The right to consent to sex moves from the spouse to the state and takes away women’s sexual agency. 

The above discussion clearly indicates that there is an urgent need to reconceptualize the understanding of rape and acknowledge the sexual agency of women. The law has so far taken steps like criminalizing rape, but this only strengthen the power of state and gives on additional protection to women. New legislation must be made, and existing legislation that provides women protection and power must be strengthened. Understanding of the rape must be reconceptualized by not treating it as an as an act of violence or an exceptional act, as three out of five rape cases involve family, friend or a known acquaintance. It is time that the Indian jurisprudence recognizes the appalling nature of its provisions of laws and strikes down its patriarchal interpretations of the law.

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