READING DOWN THE MARITAL RAPE EXCEPTION: FROM THE TOP OF AN IVORY TOWER?

By Parva Kaushal Khare and Siddharth Sonkar

On October 11, 2017, in Independent Thought v. Union of India,[1] the Supreme Court held sexual intercourse with a girl below eighteen years of age to be rape, regardless of her marital status.[2] It did so by reading down the Marital Rape Exception.[3] However, the Bench refrained from making any observation towards marital rape of adult women. We find this problematic due to several reasons.

Firstly, there seems to be an absence of an admission that marital rape is violent. Whereas there is a piecemeal acknowledgement of the U.N Secretary General Report[4] which states that marriage is one of the commonly identified forms of violence, there seems to be an absence of an express characterisation of marital rape; of the violent forms that it can take and how rape within the marriage really affects the daily lives of women. At present, there seems to be a degree of normalisation of marital rape in discourse resulting in its conception as something that is not violent; as something which is impossible since it is not possible to rape one’s wife. David Finkelhor, in his article entitled ‘Marital Rape: The Misunderstood Crime’ suggests that even where marital rape exists in legislation, it does not exist in our imagination.[5] The ignorance of the nature of marital rape results in loss of imagery of just what it is. This ignorance stems from the misconception that when a husband compels his wife to engage in sex relations, she suffers relatively little psychological trauma as compared to when she is raped by a stranger. Whereas the husband is perceived as only ‘compelling his wife’ what a stranger does is regarded as rape. In reality, however, marital rape does involve brutality, terror, violence and humiliation, and in many cases enough to rival the most graphic stranger rape. This may be depicted by a few of these experiences:

…[O]ne had been raped at knifepoint by a husband who held her up against the wall and threatened to kill her…one was jumped in the dark by her husband and raped in the anus while slumped over a woodpile…one was gang raped by her husband and his friend both wielding blackjacks after they surprised her alone in a vacant apartment…one had her baby kidnapped by an estranged husband who compelled her to have sex as a condition for returning the child…one had a six centimetre gash ripped in her vagina by a husband who was trying ‘to pull her vagina out’.[6]

The women who experienced these rapes said that they were sexually available whenever their husbands wanted them. However, what drove these men to rape their wives was an ‘intense desire to punish, humiliate, degrade and retaliate against their wives using rape as the vehicle.”[7] Even though this haunting imagery may not include all forms of marital rape, the aforementioned experiences point towards the overwhelming need to humanise discourse surrounding marital rape, since the absence of the reality of the lives of married women from discussion results in normalising its occurrence. The judgement seems to reinforce this absence, highlighting how institutionally entrenched its misconception is.

Secondly, it is quite straightforward to read down the Marital Rape Exception by recognising the distinction between a married and an unmarried female child. However, it is much more complicated to contest the distinction between a married and an unmarried woman, regardless of her age. In case of the former, there is no distinction for the purposes of criminalising aggravated sexual assault under the Protection of Children against Sexual Offences Act, 2012.[8] So holding that the exception classifies unreasonably insofar as it applies to female children for the purposes of criminalising rape is not difficult for the Supreme Court. However, in case of the latter, in order to establish that the classification is unreasonable, the Court will have to admit that there is no rational nexus between this classification (between married & unmarried women) and the object sought to be achieved. The State’s object deciphered by the Supreme Court is admittedly to preserve the sanctity of the institution of marriage. Strangely, while recognizing this object as the basis for classification, the Supreme Court “begs the question as to why in this exception the age has been fixed as 15 years and not 18 years.[9] Does the Court mean that by raising the age threshold to eighteen years, the object becomes a rational one? Does it mean that the classification between married and unmarried females would become reasonable if it operates for women above the age of eighteen? If this is what the Court meant, then it seems to believe in a preconceived justification for marital rape of adult women. While the Supreme Court has ‘refrained from answering this question’, it has not refrained from making these remarks. Resultantly, the question continues to linger.

Thirdly, there is an implicit recognition of the constitutionality of marital rape of adult women. The Supreme Court admitted that the purpose of reading down a law is to make it consonant with the Constitution.[10] Thereafter, it admitted two possibilities:

If the legislature enacts a law which is violative of the fundamental rights of the citizens, is arbitrary and discriminatory, then the Court would be failing in its duty if it does not either strike down the law or read down the law in such a manner that it falls within the four corners of the Constitution.[11]

By reading down the Exception rather than striking it down entirely, there is recognition of its constitutionality in its present form, even if the Court has refrained from answering any questions pertaining to marital rape of adult women. This undermines the challenge to the constitutionality of the Exception as a whole, arguably making it more difficult to challenge the same. This is because the Supreme Court may regard the exception as ‘corrected’ and not feel the need for its further consideration. Such a possibility is relevant, since a group of petitions by inter alia the RIT Foundation and the All India Democratic Women’s Association challenging the marital rape exception in entirety are being heard by the Delhi High Court.[12]

To conclude, the limited conception of marital rape in present-day discourse, both in mainstream media and the highest courtrooms is a serious concern. Deconstructing the conception of marital rape by probing into the actual, social experiences of women who face violence on a regular basis is a prerequisite for adjudicating upon the lives of women from the top of an ivory tower.

(Parva Kaushal Khare is an Associate Editor and Siddharth Sonkar is an Editor at the Journal of Indian Law and Society)

[1]Independent Thought v. Union of India, WP(Civil) No. 382 of 2013 (Supreme Court).

[2]The Wire Staff, Sex with Minor Wife is Rape, Rules Supreme Court, The Wire October 11, 2017, available at https://thewire.in/186490/minor-wife-sex-rape-supreme-court/ (Last visited on November 06, 2017).

[3] Supra note 2, at ¶15; The section now states that marital rape of a girl child not below the age of eighteen years of age does not amount to rape.

[4] Indian Penal Code, Act 45 of 1862, INDIA CODE (1860).

[5] David Finkelhor, “Marital Rape: The Misunderstood Crime” available at http://www.secasa.com.au/assets/Documents/Marital-rape-The-misunderstood-crime.pdf (Last visited on November 06, 2017), 1.

[6]Id., at 2-3.

[7]Id., at 3-4.

[8] Protection of Children from Sexual Offences Act, No. 32 of 2012, INDIA CODE (2012), available at http://indiacode.nic.in/amendmentacts2012/The%20Protection%20of%20Children%20From%20Sexual%20Offences%20Act.pdf

[9]Supra note 2, at ¶76.

[10]Supra note 3.

[11]Supra note 2, at ¶59.

[12] Mallory Moench, High Court Questions Centre on Marital Rape: ‘How Do You Justify the Exception?’, The Wire July 19, 2017, available at https://thewire.in/159074/marital-rape-exception-high-court/ (Last visited on November 06, 2017).

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