Two Delhi high court judges, Rajiv Shakdher and C Hari Shankar could not agree on whether marital rape should be criminalised. What they did agree on, however, was that the case could move to the Supreme Court since substantial questions of law were involved.
The judges were hearing a bunch of petitions first filed seven years ago to look at an exception in India’s rape laws that exempts a man from the charge of rape even if he forces his wife to have non-consensual sex.
The question before the judges was whether this immunity to husbands went against the constitutional rights of women to equality and dignity, sexual autonomy and bodily integrity.
Here’s what they said in the 393-page judgment.
Question before the court
Rajiv Shakdher (RS): The poser before the court is: Should a husband be held criminally liable for raping his wife who is not under 18 years of age?
C Hari Shankar (CHS): The issue at hand is fundamentally simple, as the principles for invalidating a statutory provision as unconstitutional are trite and well-recognized…All that the court has to do is to apply these principles to the impugned exception.
The idea of consent
RS: Consensual sex is at the heart of a healthy and joyful marital relationship. Non-consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals. The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being. Non-consensual sex destroys this core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate.
CHS: There can be no compromise on sexual autonomy of women, or the right of a woman to sexual and reproductive choice. Nor is a husband entitled, as of right, to have sex with his wife, against her will or consent. Conjugal rights end where bodily autonomy begins.…[But] just as every incident of taking of the life by one, of another, is not murder, every incident of non-consensual sex of a man with a woman is not rape.
Modern marriage
RS: When marriage is a tyranny, the state cannot have a plausible legitimate interest in saving it. In every sense, the marital rape exception, in my view, violates the equality clause contained in Article 14 of the Constitution… with one stroke it deprives nearly one-half of the population of equal protection of the laws.
CHS: In our country, marital vows are still regarded as inviolable, and marital fidelity is, fortunately, still the norm, profligacy being the exception (even if adultery is no longer a criminal offence). The sexual aspect is but one of the many facets of the relationship between husband and wife, on which the bedrock of their marriage rests.
Expectation of sex within marriage
RS: The submission that the husband has “conjugal expectation” to have sexual communion with his wife, in my opinion, is tenable as long as the expectation is not equated to an unfettered right to have sex without consent of the wife. The law cannot direct consummation.
CHS: The primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex.… Sex between a wife and a husband is sacred.
In no subsisting, surviving and healthy marriage should sex be a mere physical act, aimed at gratifying the gross senses. The emotional element of the act of sex, when performed between and wife and husband, is undeniable.
Judiciary v legislature
RS: It is incumbent on courts to take decisions concerning complex social issues and not dribble past them, as that is the mandate of the Constitution and, therefore, a duty and obligation which must be discharged if one is to remain true to the oath taken under the Constitution.
CHS: The court cannot substitute its view for that of the legislature, and hold, definitively, that treating non-consensual sex by a husband with his wife would not imperil, or threaten, the marital institution.… A court may differ in its view. That cannot, however, be a basis to overturn the legislative perception, which represents the perception of the entire national populace.
Different classes of victims
RS: In a gang rape involving the husband of the victim, the co-accused will face the brunt of the rape law but not the offending husband only because of his relationship with the victim. A married woman’s ability to say “no” to sexual communion with her husband when he is infected with a communicable disease or she is herself unwell finds no space in the present framework of rape law. Thus the rape law as it stands at present is completely skewed insofar as married women are concerned.
CHS: An act of non-consensual sex, as committed by a complete stranger, cannot be equated with an act of non-consensual sex by a husband. The extent of outrage felt by the wife, in the two cases, is also distinct and different.… A woman who is waylaid by a stranger, and suffers sexual assault – even if it were to fall short of actual rape – sustains much more physical, emotional and psychological trauma than a wife who has, on one, or even more than one, occasion, to have sex with her husband despite her unwillingness. It would be grossly unrealistic, in my considered opinion, to treat these two situations as even remotely proximate.
Invasion of private space
RS: When an offence of sexual abuse (short of rape) takes place within the confines of a married couple’s private space, the law has unhindered access to the very same space to bring the guilty to justice…The attempt to keep away the law even when a woman is subjected to forced sex by her husband, by demarcating private and public space is to deny her the agency and autonomy that the Constitution confers on her. The distinction between private and public space has no relevance when rights of the women victim are infringed.
CHS: The marital bedroom is inviolable. A legislation that seeks to keep out, from the parameters of such a relationship, any allegation of ‘rape’, in my view, is completely immune to interference.
Urgency to criminalise, or not, marital rape
RS: A married woman’s right to bring the offending husband to justice needs to be recognized. This door needs to be unlocked; the rest can follow. As a society, we have remained somnolent for far too long…It would be tragic if a married woman’s call for justice is not heard even after 162 years since the enactment of Indian Penal Code. To my mind, self-assured and good men have nothing to fear if this change is sustained.
CHS: The possibility of the husband being regarded as the wife’s rapist, if he has, on one or more occasion, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law. The daughter born of such an act would, if the petitioner’s submissions are to be accepted, be a product of rape. Though the child has been born out of wedlock, and out of a perfectly legitimate sexual act between her parents, she would be the child of a rapist because her mother was, on the occasion when she had sex with her father, been unwilling
Creation of a new offence
RS: If the marital rape exception is struck down [all that would happen] is that the offending husband would fall within the ambit of the offence.
CHS: The petitioners contend that the impugned exception is outright unconstitutional and deserves to be guillotined. Would we not, by doing so, be creating a new offence? The answer, in my opinion, has necessarily to be in the affirmative.
Read the judgement here.
[The judges’ remarks have been lightly edited]
Weigh in: Should marital rape be recognised as a crime? Write to me at: namita.bhandare@gmail.com
GENDER TRACKER
In 82% of cases of sexual violence against women aged between 18 and 49, the perpetrator was a husband; 13.7% by former husbands.
Source: National Family Health Survey-5
GOING PLACES
Photo credit: The Kashmirwalla
Sanna Irshad Mattoo is one of four Indians, and the only Indian woman, to be awarded a Pulitzer Prize in the feature photography category. Along with slain photo journalist Danish Siddiqui and other colleagues from Reuters, Adnan Abidi and Amit Dave, Sanna was awarded for her “for images of Covid’s toll in India that balanced intimacy and devastation, while offering viewers a heightened sense of place” according to the Pulitzer Prize website.
REST IN POWER
She was just doing her job, wearing a flak jacket that clearly marked her as press while covering a raid by Israeli forces in the occupied West Bank. If the killing of 51-year-old Shireen Abu Akleh who was shot in the head—her producer Ali al-Samoudi was also shot and injured–on May 11 sparked fury, then the beating by Israeli forces of thousands of mourners as they carried the coffin of the Christian Palestinian-American who had worked at Al Jazeera for 25 years propelled that fury.
“For a new generation of young Arab women,” wrote Lyse Doucet of the BBC. “She was the first female correspondent they’d seen on their television screens.”
Amena Ashkar, a Palestinian journalist, called her a ‘role model’ who both informed her awareness of the Palestinian cause but also what “I, a woman, am capable of providing this cause.”
FIELD NOTES: What’s in a name?
Who gets to name species when they’re discovered? Sometimes it’s all a bit of fun. The Ba Humbugi, a Fiji snail referenced one of literature’s crankiest men. And the mushroom Spongiforma Squarepantsii is a name most kids would find easy to learn. Others honour eminent scientists. Charles Darwin, for instance has nearly 300 species of animals named after him.
Yet, when it comes to the honour of bestowing names, a study by Robert Poulin at the University of Otago, Dunedin finds that nearly 3,000 bloodsuckers and other parasites mostly honour men. Combing through eight parasitology journals between 2000 and 2020, the study found that of 596 parasites honouring an eminent scientist, only 18% honoured women.
The name gender gap is stark in the plant world as well. Another 2010 paper looked at the names of nearly 900 varieties of desert succulent plants: Only one in 10 was named after a woman scientist.
Read more here.
SEE
Courtesy: @Indianwomenblog
Identified only as @smishdesigns, a series Pati, Patni, Aur Woke, seeks to portray the misogynistic realities of Indian marriage.
“I am really sick of hearing ‘compromise toh karna padega (you have to compromise). Forget our in-laws and husbands, our parents don’t want us to be ourselves,” she told Indian Women blog.
STORIES YOU MIGHT HAVE MISSED
What data tell us about India’s domestic violence epidemic
Karnataka now wears the badge of shame for being the number one state for domestic violence with nearly one in two women reporting it, according to the fifth National Family Health Survey (NFHS-5) conducted between 2019 and 2021.
Even more shocking is the 24% increase in domestic violence from 2015 when 20.6% married women reported it to NFHS enumerators to 44% in this round.
Bihar follows Karnataka in terms of domestic violence. Unlike the southern state, however, Bihar has seen a dip in numbers from 43.7% in 2015 to 40%, a figure that is still unacceptably high. The report finds that “84% of women face spousal violence when their husbands get drunk often” and “61% of them face spousal violence when their husbands are drunk sometimes”. The state has been officially dry since 2016.
Acid attacker turns rapist 17 years later
Seventeen years ago, he attacked his sister-in-law with acid and received a seven year jail sentence for it. Last week, the 43-year-old man was arrested from Bengaluru, this time for raping the same woman at her Delhi home in December 2021.
The man filmed the crime on video and threatened to release it on social media. He also told the woman he would attack her husband and children with acid if she told anyone about the rape.
Raising the minimum age of marriage for women
Non-government organisations, including the Kailash Satyarthi Children’s Foundation told Parliament’s standing committee of the adverse health impact of early marriage and pregnancy on young women. The committee is hearing arguments for and against raising the minimum legal age of marriage for women from 18 to 21 to bring it at par with men. The bill was introduced in Parliament on December 21.
AROUND THE WORLD
Top cities fail working women
The world’s top cities for doing business fail employed women when it comes to safety, finds a Bloomberg Businessweek analysis of 15 cities. Selected by Bloomberg journalists for being commerce hubs, none of the cities, from London to Seoul could score a perfect score of five, based on safety, mobility, maternity, equality, and wealth.
Toronto scored the highest with a score of 3.66 while Sao Paulo was at the bottom of the list with 2.68.
Phew!
Lawmakers in Louisiana, America, pared down a controversial bill that included language which would classify abortions from ‘the moment of fertilisation’ as homicide. The bill was criticised even by anti-abortion groups, reports CNN, for treating women seeking abortions as criminals.
The bald truth
An employment tribunal in the UK has held that calling a man bald amounts to sexual harassment. The three men panel referred to their own baldness and said that baldness is a characteristic of gender rather than age. Using the word to insult an employee is a ‘violation of…dignity’, the tribunal ruled.
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| That’s it for this week. If you have a tip or information on gender-related developments that you would like to share write to me at: namita.bhandare@gmail.com. |