By not seeing marital rape as a crime, Supreme Court is doing a disservice to Indian women
The systematic pushback against women’s rights and liberties in India is going great guns. After the tepid attempt by the Supreme Court to dilute the impact of the Prevention of Domestic Violence Act, 2005 and Section 498A, by ordering the constitution of “family welfare committees” to look into cases before charges can be pressed, we now have the infuriating and grossly anti-women observation by the apex court that “marital rape cannot be considered as a criminal act”.
The Supreme Court was really the last straw of hope for reforms in outdated approach towards marital rape after Parliament had hung up its boots, saying the country isn’t ready to accept marital rape as a crime. The Union minister of women and child development, Maneka Gandhi, made an infamous volte-face on the issue when she said last year that marital rape “cannot be applied in the Indian context”, because of factors including “level of education and illiteracy, poverty, social customs and religious beliefs”.
Marriage over marital rape
This, despite the 2015 hoopla around the WCD ministry trying in to bring in “comprehensive” legislation to criminalise marital rape, and bring the law at par with a number of European and Western democracies, where women enjoy equal rights within marriage.
For example, marital rape is a crime in the United States, United Kingdom, Australia, Germany, Sweden, Belgium, Argentina, Bhutan, Brazil, Canada, France, Hungary and several other countries. The list of countries where marital rape isn’t a crime is hardly enviable, including Egypt, Afghanistan, Indonesia, Iraq, Saudi Arabia, etc.
Needless to point out that most thriving and healthy democracies have penalised marital rape, and only authoritarian or theocratic states still retain the right of the husband to have forced sex on the wife. That India is part of the latter club is a terrible shame.
However, Maneka Gandhi’s U-turn proved that her ministry had capitulated to the larger misogynist trend in the BJP-RSS government. Now, the Supreme Court’s observation drives a nail through the coffin of demanding that marital rape be criminalised.
The two-judge bench of Justices MB Lokur and Deepak Gupta has said: “Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape. Therefore, it cannot be considered as a criminal offence.”
Raping minor/wives isn’t rape
The apex court was responding to a petition by the NGO Independent Thought, drafted by lawyers including the noted Supreme Court advocate Gopal Subramaniam, who was a co-panellist on the Justice Verma Committee report that firmed up the anti-rape legislation in the wake of the December 16, 2012 gangrape and murder of Jyoti Singh in Delhi.
The petition wanted the court to intervene and read down Section 375 (2) of the Indian Penal Code, which is the clause in the rape law that makes the exception for a man to have sex with a girl aged 15-17 if she’s married to him. “Without any remuneration, we have submitted the report to the government and that too without any extension.
It was an exhaustive work,” Subramaniam said. Basically, Section 375 (2) of the IPC allows men to rape their minor wives, and because marital rape isn’t yet a crime in India, but raping a minor is a statutory offence, the institution of marriage gets precedence over the health and well being of a girl child, just because she has been married off well before the legal age of marriage and consent, 18.
The Centre vehemently defended Section 375 (2) of the IPC, and like the debates in Parliament earlier, it fell back on tradition. MoS Home, Haribhai Parthibhai Chaudhary, a BJP MP from Gujarat and the minister of state, home affairs, is on record saying:
"It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament."
However, Section 375 (2) of IPC is against the provision of anti-rape and anti-sex trafficking legislations, such as Immoral Trafficking (Prevention) Act, the Protection of Children from Sexual Offences Act, 2012, because neither of the latter two legislations makes the distinction between married and unmarried minor girl children.
This is exactly the point that was highlighted by the petitioners, but it seems both the Centre and the Supreme Court, weren’t ready to pave the way for a paradigm shift in the understanding of marriage as an institution and in ensuring the rights of women as citizens, and not as biological determinants.
What about women’s consent?
The Court raised two issues: one, the cases of consensual elopement and sex engaged in by minors, which it doesn’t want to penalise. Second, the issue of child marriage (which is illegal but rampant) and therefore the abundance of child wives in India, who are thereby subject to “marital rape”, in case it was made to be a criminal offence.
There’s a strange reductiveness in the nature of the Court’s understanding of consent because marital rape is strictly a non-consensual activity, in which the man/husband is forcing himself upon his wife. Because the Court was hearing the petition in which the case of minor wives was offered as a reason to penalise marital rape, it decided to bring up the issue of teens engaging in consensual sexual intercourse.
According to the PTI report: “’There are cases when college-going teens, below 18 years of age, engage in sexual activities consensually and get booked under the law. Who is going to suffer? The boy is not at fault. The punishment of seven years is too harsh," the bench observed. It said, similarly, problem arises when a girl, under 18 years of age, elopes and engages in consensual sexual activity, the male gets booked for rape. 'In these cases, we do have a problem if look at various aspects,' the bench said as it asked the Centre to apprise it about the number of prosecutions under the Child Marriage Act for past three years in three weeks.”
Tradition versus individual women
In this strange slippery slope of supreme mansplaining, once again, the welfare of the woman herself has been sacrificed at the altar of family values, the institution of marriage – even when it’s illegally upheld, such as in the case of child marriage. For example, advocate Binu Tamta, appearing for the Centre, said that this was a “pragmatic” approach.
The PTI report says: “It has been considered pragmatically and every aspect was considered by the Parliament,” she said, adding that keeping the child marriage prevalent in some societies it has been done.
Earlier, the apex court had in 2015, made National Commission for Women (NCW) party to explain how the offence of rape in the IPC afforded an exception to a man to have physical relationship with his minor wife and still not qualify it as crime.” But the petitioner had sought that Section 375(2) of IPC is read down because it’s “violative of Articles 14, 15 and 21 of the Constitution to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the ground that she has been married”.
The sheer absurdity of the logic that both the Supreme Court and the Centre are putting forward is, however, part of the larger trend. Women’s bodies, minds and agency are being completely subjugated and autonomy – that was hard-fought after decades of struggle – is being thrown out of the window.
It’s important to note that vulnerable bodies belong not just to women, but also to those belonging to religious minorities and other castes. However, when it comes to women, the Court and the State are on a deliberately regressive path.