The government has refused to criminalise marital rape for all the wrong reasons

The government through the Women and Child Development Ministry has taken the stance that marital rape is not rape at all.
Representational image of Women and Child Development Minister Maneka Gandhi and the Delhi High Court | Source : @Manekagandhibjp

The government’s affidavit on marital rape perpetuates the misconception that rape cannot be established without medical evidence.

The central government in an affidavit submitted to the Delhi High Court recently argued that marital rape should not be criminalised. But all the arguments made by the government are ill-founded.

The government affidavit argued that marital rape cannot be criminalised unless there is societal consensus on the issue. It stated that the Justice Verma Committee had also stressed on societal change before criminalisation.

It further argued that if marital rape were to be criminalised, the mere deletion of the exception in the Indian Penal Code, which states that sexual intercourse/sexual acts by a man with his wife is not rape, is not sufficient. In other words, all non-consensual sexual acts currently considered as rape by the Indian Penal Code (IPC), should not ipso facto be considered rape if it involves a married couple.

It argued that the offence needs to be defined, since what one woman may perceive as rape, may not be perceived so by another. The government also argued that there will be “no lasting evidence” in sexual acts involving spouses, and hence, it will be difficult to prove.

But the Justice Verma Committee recommended that rape/sexual violence be viewed not as an infringement on a woman’s chastity, honour, and virginity, but as a violation of her bodily integrity and sexual autonomy – a violation of her fundamental rights guaranteed by the Constitution.

Sexual autonomy implies that a person has the freedom to choose whether to engage in a sexual act or not, with whom and when to engage in a sexual act, and what sexual act to engage in. Therefore, the argument that what one woman perceives as rape may not be perceived so by another woman is flawed. Like in the case of rape in a non-marital context, or any other crime for that matter, what amounts to the offence and what is excluded, is articulated in the law.

Making a distinction between marital and non-marital relationships while defining rape will also be constitutionally suspect. The sexual autonomy and bodily integrity of a married woman vis-à-vis her husband are no less than her counterpart who is raped by a man that she is not married to. Arguing otherwise leads to the conclusion that on getting married, a woman relinquishes her bodily integrity and sexual autonomy to her spouse. It supports the view that a woman loses her identity as a person on marriage, and is the property of her husband.

The argument that marital rape does not leave “lasting evidence” also reveals conceptual confusion about proving rape. It assumes that in most cases of rape, “lasting evidence” is available, and that evidence of injuries/other medical and forensic evidence is essential. This perpetuates the misconception that medical evidence is present in all cases of rape, and that rape cannot be established without medical evidence.

Medical evidence may possibly indicate that a penetrative act has occurred (it may not in a majority of cases not involving penile penetration). It cannot indicate whether the penetrative act was consensual or not, which is the nub of the offence of rape. The testimony of the victim must be relied upon, along with other evidence that may be available to indicate non-consent.

An absence of injuries and absence of signs of resistance does not indicate consent. In fact, the IPC states that lack of resistance does not imply consent. Cases of marital rape, hence, are no different from other acquaintance rape cases, which form the majority of reported rape cases.

Proving a case of marital rape will be as difficult as it is to prove a case of rape by an acquaintance or a rape in a relationship in the nature of marriage (aka “live in relationships”). The prosecution will have to prove beyond reasonable doubt that the sexual act occurred, and it was without the consent of the wife, or under one of the other circumstances listed in the IPC.

This is by no means an easy task. However, the state cannot justify not providing a remedy to the violation of a woman’s fundamental rights on the ground of difficulty of proving the offence.

Lastly, the central government argues that the Verma Committee recommended societal consensus on the issue of marital rape. In fact, it did not. What the Verma Committee recommended was that the government take pro-active measures to make the society more egalitarian in the gender-context.

The committee identified the patriarchal nature of Indian society, and the sense of entitlement that Indian men feel over women’s bodies as causes for offences ranging from harassment on streets, sexual harassment, and stalking, to rape. It recommended that discussions begin in school about responsible sexual behaviour, including issues of consent.

Governments have failed to implement this important recommendation of the Verma Committee, which the committee noted would be essential to ensure proper and long-term implementation of the law. It is ironic that the government is relying on this recommendation of the committee to argue that marital rape – a stark example of patriarchy – should not be criminalised.

Mrinal Satish is a Professor of Law at the National Law University, Delhi. He is the author of the book “Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India.”

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