What Petitioners Have Argued While Seeking to Criminalise Marital Rape

The written submissions on behalf of the petitioners have relied on the recent landmark Supreme Court right to privacy judgement and the NALSA verdict, among others.

New Delhi: The Delhi high court on Wednesday, August 30, agreed to hear the Forum for the Engagement of Men (FEM), which is supporting the petitions seeking criminalisation of marital rape, before adjourning the case to September 4.

The court allowed the intervention application by the organisation – which believes in the equality of men and women – and made it a party to the petitions seeking declaration of Section 375 (offence of rape) of the IPC as unconstitutional on the ground that it discriminates against married women being sexually assaulted by their husbands.

The application, filed before the bench of acting Chief Justice Gita Mittal and Justice C. Hari Shankar by Abhijit Das of FEM, states that marital rape was an exception in the law that took away the right of the woman to say “no” and their right to agree to consensual sexual intercourse, and the organisation seeks for “our wives and wives of all Indian men not to be reduced to legal objects incapable of sexual will, and with no legal ability for sexual expression.”

In India, marital rape is not defined in any statute or law, an issue several women’s rights advocates have argued against. Numerous married women in the country endure sexual violence, as evidenced by the results of International Men and Gender Equality Survey in India, which reported that 20% of those surveyed admitted to committing sexual violence against their partner.

The patriarchal nature of Indian society, the plea argues, ingrains it in the minds of men that women are expected to comply when their husbands demand sex. “Marriage is a partnership between equals. However, men have historically assumed ‘privileges’ including the privilege of having sex at their instance. Most women have been conditioned to accept that.”

The lead petitioners in the case NGO, the RIT Foundation and the All India Democratic Women’s Association (AIDWA) argue that the exception under Section 375, by discriminating against married women, violates Articles 14 and 15 of the constitution, which prohibit discrimination without an intelligible basis, as well as violating Article 21, which guarantees the right to life and personal liberty, and Article 19, which should guarantee the freedom to express or withhold sexual desire in all consensual contexts.

Senior advocate Colin Gonsalves, appearing for a petitioner woman who was a victim of marital rape, argued that marriage cannot be viewed as giving a husband the right to coerced intercourse on demand.

Right to life and personal liberty

In written submissions presented before the court on Wednesday (which The Wire has obtained), RTIF and AIDWA counsel Karuna Nundy relied on the recent landmark judgement of the Supreme Court declaring privacy as a fundamental right as well as other verdicts to state that “these have decided a woman has a right to bodily integrity, sexual autonomy and reproductive choice.”

In the right to privacy judgement, Justice D.Y. Chandrachud had held that in India “patriarchal notions are used as a shield to violate core constitutional rights of women based on gender and autonomy.” With gender violence often being treated as a matter of honour for the family, not only does the victim suffer physical abuse, but she also has to undergo mental trauma of her dignity being violated.

Privacy, Justice Chandrachud had held, “must not be utilised as a cover to conceal and assert patriarchal mindsets.”

In such a scenario, the challenge was taking the violation of the dignity of women in the domestic realm earnestly while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty.

The written submission further states that in Bodhisattwa Gautam vs Subhra Chakrabortythe apex court had observed:

To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects.

Equality before the law

In the ongoing case, the Centre had on Monday argued that criminalising marital rape could destabilise the institution of marriage and make it an easy tool for harassing the husbands. Nundy, in her submission before the court, stated that the institution of marriage can never be a legitimate basis for exemption from the criminal law.

Arguing against the fear of misuse of the law, Nundy has stated that the argument is not only “unfounded and misplaced” but it also deprives the victims of violent sexual assault of their rights due to the lack of adequate protection or support from the law.

Gonsalves stated in the hearing on August 28 that a marriage licence cannot be viewed as licence for a husband to forcibly rape his wife with impunity as a married woman has the same right of full control over her body as an unmarried woman.

Also read: Triple Talaq and Marital Rape: Politics and Patriarchy Trump Gender Justice

The Centre, on the other hand, said that marital rape has not been defined in a statute or law, while the offence of rape is defined under section 375 IPC. Hence, defining marital rape would call for a broad based consensus of the society.

“What may appear to be marital rape to an individual wife, it may not appear so to others. As to what constitutes marital rape and what would constitute marital non-rape needs to be defined precisely before a view on its criminalisation is taken,” the Centre had said.

The fact is that any law can be misused. However, it is only in the case of the ones that seek to protect the rights of women and “displace patriarchal power” that they get challenged.

“When any systemic power is displaced a little, such as patriarchal power, the backlash is strong to suppress such challenge,” the written submission stated.

Forum for the Engagement of Men, who believe in the equality of men and women, have aligned with the lead petitioners. Representative image. Credit: Reuters

Forum for the Engagement of Men, who believe in the equality of men and women, have aligned with the lead petitioners. Representative image. Credit: Reuters

While men’s rights activists have argued that married women can seek recourse under Section 498 – which covers domestic violence – advocates have previously said that the law is not strong enough on rape.

Citing the examples of England, US, Nepal and Australia, Nundy said that in these countries, married women do not shed their civil liberties and human rights on marriage.

The apex court, in Prahlad vs State of Haryana, had sated that:

“It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality.

In the submission made on behalf of the petitioners, Nundy has thus argued that “There can be no compelling state purpose to treat rape victims differently based on marital status or their prior relationship to the rapist. An individual’s right not to be raped cannot be held hostage to an imposed conception of marriage.”

Discrimination on grounds of sex

Citing the judgment under NALSA vs Union of India, the written submission before the court states that specific categories of Article 15 – which prohibits the state from discriminating on grounds of religion, race, caste, sex or place of birth – are not exhaustive and include gender identity.

“As such, marital status may be read into “sex” as a recognised ground of gender non-discrimination,” and thus the marital exception discriminates against married women.

In its present form, the law takes a married woman’s ability to say “yes” to sexual intercourse – thus limiting her right to freedom of sexual expression and behaviour.

In the same case, the Supreme Court had stated that:

“Self-identified gender can be expressed through dress, words, action or behavior or any other form… subject to the restrictions contained in Article 19(2) of the constitution.”

Since the marital rape exception restricts a woman’s sexual “behaviour” and cannot be justified under any of the heads of Article 19(2), there is a need to strike down the provision.

The court will continue hearing the case on Monday, September 4.