Listen to this article:
“There is one case where a man has no right to ask at all for sex since they are not in a marriage, but another case where he has a right sanctified with marital bond between them, he can expect reasonable sexual relations with partner…we are not recognising the difference if we are saying that they are at par.”
“If the legislature has thought that where parties are married and the only grievance of lady is that she was not willing, if the legislature felt such a case should not be categorised as rape, is it something which is so unconstitutional.”
“Can’t equate chalk and cheese.”
There is a clear thread running through the remarks made by Justice Shankar in the marital rape exception hearings – how should a legitimate expectation of ‘reasonable sexual relations’ in a marriage affect how we are to see, and punish, non-consensual sex within its bounds?
Senior advocates Rebecca John and Rajshekhar Rao have, in their responses, established that the right to sexual autonomy must prevail over this ‘legitimate expectation’, whether or not it be a legal right. Justice Shankar ostensibly agrees with this; he has clarified that his comments do not mean that non-consensual sex within marriage should not be an offence at all. Yet, he continues to insist that one cannot “close one’s eyes” to the qualitative difference between a marital and non-marital relationship.
To understand where Justice Shankar’s views seem to diverge, it might be appropriate to frame his inquiry more narrowly. Let us assume that the absolute nature of a woman’s sexual autonomy and her right to say ‘no’ is, in fact, common ground between the Bar and the Bench here (as it should be). Given that, Justice Shankar seems to be asking if the legitimate expectations in a marriage make what is undoubtedly a violation of sexual autonomy a less severe or a different violation from a violation outside marriage. As long as the law recognizes autonomy itself as an absolute right, is it unconstitutional to punish some violations of this absolute autonomy as something other than ‘rape’; perhaps as the law does at present, where a wife that has been sexually assaulted by her husband can still resort to filing a case for cruelty?
To summarise – is the violation of a victim’s sexual autonomy by her husband qualitatively different enough from a violation by a stranger for it to be labelled differently or punished differently? The victim has an absolute right to say no, but can we treat differently these two violations of that absolute right? This, at its core, is an Article 14 issue of equal treatment.
First, we must note it is not prima facie unconstitutional to treat different violations of sexual autonomy differently. For instance, sexual harassment, rape, and aggravated rape are all violations of sexual autonomy, and all are labelled and punished differently. This differential treatment is consistent with our understanding of sexual autonomy, and in no way dilutes its absolute nature. It is acceptable in law to recognise different degrees of violations of the same absolute right.
What is, however, required is that the underlying basis for this different treatment be constitutionally sound – that this differentiation be intelligible, have a legitimate aim, and have a reasonable nexus with the fulfilling of that aim. All three of these criteria must be met. Let us demonstrate by example – the differing treatment of sexual harassment, rape, and aggravated rape is comprehensible since all three offences consist of different acts, has the legitimate aim at punishing more serious violations more seriously, and reasonably fulfils that aim by putting in place a higher punishment for aggravated rape than for rape.
The question then is, whether the marital rape exception can withstand this scrutiny. The ‘aim’ of such an exception, depending on whether it is construed broadly or narrowly, is either to preserve the sanctity of the institution of marriage in general or to specifically protect those marriages where rape has occurred. Now, the latter evidently cannot be the aim – in that it is both an illegitimate aim for a constitutional state to pursue, and incompatible with other state policies that allow for divorce on proof of cruelty including sexual assault.
It may be worth examining the former aim more closely. What is the state trying to protect the sanctity of the institution of marriage from? It is not penal law generally since the same acts within a marriage can be punished as ‘cruelty’. Thus, clearly, the state sees rape specifically and its existence within marriage a particularly desecrating fact – and seeks to protect the reputation of the institution (not specific marriages) by a legal fiction erasing rape from marriage. How do you protect an institution from the ugly reality of rape? In the state’s terms, you just deny it.
The state, in doing this, does not realise it is making a crucial mistake – the continued erasure of rape in marriages from the statute books even when it continues to occur in the lived experience of victims every single day does not consecrate the institution of marriage, it desecrates it. To deprive a married woman who has suffered rape of the right to call her husband a rapist, to let the husband off lightly, does not preserve the sanctity of marriage, it desacralises it. The marital rape exception bears no reasonable nexus with the preservation of the sanctity of marriage; instead, it destroys that sanctity, associating the institution of marriage permanently with the clandestine perpetuation of sexual violence.
Consequently, either the marital rape exception has no legitimate aim, or no reasonable nexus with achieving a legitimate aim. Either way, the unequal treatment of married and unmarried rape victims is discriminatory and unconstitutional.
Contrary to the high court’s questions, there is no difference discernible between married victims and unmarried victims. The marital rape exception must fall.
Hrishika Jain works as a consultant (research) at Project 39A, a criminal justice reform initiative at National Law University, Delhi. She studied at the National Law School of India University. Kaustubh Chaturvedi is also from NLSIU.