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Justice Shankar’s verdict on marital rape is far removed from the reality on ground

Marital rape
The assumption that stranger violence is somehow more traumatising than intimate partner violence, does not take into account that most sexual violence is perpetrated by a person who is known to the victim.
Image for representation. By Dreamworks/Picxy
A split verdict is what the Delhi High Court has given on the pleas to strike down the exception granted to husbands under the rape law in the Indian Penal Code. While Justice Rajiv Shakdher, who headed the bench, ruled that the exception to husbands goes against the right to equality and is unconstitutional, the other judge on the bench, Justice C Hari Shankar, felt that the exception is constitutional and was based on an “intelligible differentia” (a difference or discrepancy that can be understood).
Activists as well as lawyers have expressed horror at some of the justifications given by Justice Hari Shankar to uphold the exception given to husbands under the rape law. This includes statements that some husbands may compel women to have sexual intercourse, that striking down the law would end up dubbing husbands as rapists, and that it would be ‘completely antithetical to the agency of marriage,’ as marriage comes with the ‘legitimate expectation of sex’.

Rape is rape, even if it happens once
Justice C Hari Shankar cited previous court judgments that have held that denial of sex amounts to cruelty in a marriage, and said that in this backdrop, compared a situation where a woman was assaulted by a stranger to when a husband tries to have sex with his wife without her consent. “That what he (husband) is doing is wrong, no one can deny. The distinction between the two situations is that, where the parties are married, the woman has consciously and willingly entered into a relationship with the man in which sex is an integral part,” Justice Shankar said. He added that since a woman has decided to marry a man, she has given him the “right to expect meaningful conjugal relations with her.” He even went on to say that if a wife refuses to have sex and the husband still has sex with her, “howsoever one may disapprove the act, it cannot be equated with the act of ravishing by a stranger.” 
“Any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified, but is ex-facie unrealistic,” Justice Shankar wrote.
Comparing sexual violence, deeming one instance more serious than the other based on the degree of violence and brutality is quite misogynistic. The trauma of a woman coerced into sexual acts even if she doesn’t bear injuries is just as valid as someone who is “ravished by a stranger,” as Justice Hari Shankar puts it.

1. Rape is Rape. Marriage is no defence. Marital Rape Exception has no place in any civilised jurisprudence.
2. The anxiety over misuse of law can be better allayed by preventing illegal arrests, making bail easier, & having very strong disincentives on filing of false complaints
— Bharat Chugh (@advbharatchugh) May 12, 2022

The assumption that stranger violence is somehow more traumatising than intimate partner violence, does not take into account that most sexual violence is perpetrated by a person who is known to the victim. In fact, one in three women experience physical or sexual violence from an intimate partner or sexual violence from a non-partner, according to the World Health Organisation. While the judge seems to emphasise that most trauma is born out of stranger rapes, data shows that a majority of sexual violence – in India (95.6% according to National Crime Records Bureau statistics, 2020) and world over – is inflicted by persons known to the victims. The breach of trust, and, if applicable, the repetitive and systemic nature of the abuse, have just as much impact on a woman’s health as a violent attack by a stranger would. The comparison not only dismisses the harm done to an alarming number of women but also normalises it – just because she is married. 

The misplaced emphasis on the label 
Justice Shankar also normalised the coercion of a woman to have sex. He said that sometimes, husbands and wives have disagreements, and these sometimes affect couples’ sex lives. “A husband may, on occasion, compel his wife to have sex with him, though she may not be inclined. Can it be said, with even a modicum of propriety, that her experience is the same as that of a woman who is ravaged by a stranger?” the judge asked. 
“It would be artificial to assume that the degree of outrage felt by a wife who is compelled to have sex on a particular occasion with her husband, despite her unwillingness, is the same as the degree of outrage felt by a woman who is ravaged by a stranger against her will,” Justice Shankar wrote. He added that physical violence by a husband on his wife is a different matter, the consequence of striking down the exception would be that “even a single act of non-consensual sex, or of sex by a husband with his wife without unwillingness, would qualify as rape.” He added that criminalising marital rape may mean that a child that is born out of a situation where the wife was coerced into sex, that would mean the child would 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,” Justice Shankar wrote in the judgment. 
While the order makes it seem like the larger concern is that husband being labelled a “rapist” and being charged under the Indian law, the reality of the matter is that a majority of sexual violence is not reported. According to LiveMint’s analysis of National Family Health Survey-4 data, as much as 99% are unreported. There are a multitude of reasons for the same: lack of financial, familial and emotional support, fear of social ostracisation, intimidation by the accused, threat to life or life of loved ones, and so on. 

Yes it can be said with a modicum of propriety&also with authority by most women:Hon. Judge, whether a stranger or even husband who forces himself onto a woman or his wife, the experience of outrage, disrespect and violation is just as strong.
Ask women around you. Thank you. https://t.co/UZLPb9wA1F
— Priyanka Chaturvedi (@priyankac19) May 11, 2022

The concern seems to be that if marital rape is criminalised, women would just up and label their husbands rapists and leave marriages, ruin their children’s lives, thereby attacking the “sanctity” of marriage. However, the fact is that most women complain as a last resort. The stigma of identifying oneself as a rape victim of their husband, potentially leaving a marriage, and being a single parent, going through the unforgiving, retraumatising criminal justice system are not things that women take, or are allowed by society, to take lightly. The emphasis in the judgment though, seems more to be on the label than the fact that an individual is being denied her agency and access to remedies. 

Rape, sexuality and marriage 
Justice Shankar said in his judgment that unjustified denial of sexual access, by either spouse to the other, is not sanctified or even condoned by the law.
“The law, too, therefore, recognises the legitimacy of the desire of either spouse to have meaningful sexual relations with the other, as not only a civil, but a legal obligation,” he said. The judge also defended the marital rape exception, stating that it does not either directly say or imply that through marriage that a husband has a right to have sex with the wife against her will or consent. “All that it says is that, if he does so, he, unlike a stranger committing such an act, cannot be treated as a rapist,” he said. 
He also said that the mere fact that a husband compelled his wife to have sex though she did not consent, and if the laws do not permit action against him under the rape law, it cannot be regarded as disregard for the wife’s right to consent.
Though the other judge on the bench, Justice Shakdher, held that the exception to rape is unconstitutional, he too assigned a passive role to the wife in a marriage, in his order. “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,” Justice Shakdher wrote. 
“Conjugal expectations, though, legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access and/or marital privilege claimed by the husband vis-a-vis his wife disregarding the circumstances which obtain at the given point in time as also her physical and mental condition,” Justice Shakdher added. 
It is important to contextualise the relationship between rape, sexuality, and marriage in context of the Indian law. A report on a roundtable by Partners for Law in Development from 2015 questions that while there has recently been talk of affirmative consent in dating more recently, marriage is often taken as a proxy for consent. Notably, India still has a law for ‘rape on the pretext of marriage’ (which is often used when men refuse to turn romantic or sexual relationships into marriage, given that women are taught that marriage must be a pretext to have sex). On the other hand, marriage is offered as compensation for rape by judges and defendants in rape cases, where survivors are made to marry their rapists. “These examples underline the understanding of rape as sex rather than violence, and moreover as a violation of property to be made whole by restoring women to the marital state she was entitled to once she had been exposed to sex. You often see in cases that a marriage proposal is offered as an alibi that erases notions of violence,” PLD Director Madhu Mehra states in the report. 
This is essentially what the Delhi High Court’s order seems to be reinforcing. The fact of the matter is that even if someone is essentially of what the courts would see as “good character”, if he compels, coerces, or forces a woman into sex even once during the entirety of the relationship, that one time is sexual assault. The consent that really matters – from all parties involved, including women – during sex, is informed and enthusiastic consent. Rape does not unbecome rape if it happens only one out of ten times. 

Marital rape and a married woman’s agency 
India is one of 30 countries in the world that have not criminalised marital rape — including Pakistan, China, Bangladesh, Myanmar, Sri Lanka, Haiti, Laos, Mali, Senegal, Tajikistan, and Botswana. In other countries, laws to criminalise marital rape were passed as early as the 1970s. Australia, Poland, United States, South Africa, New Zealand, Ireland, Canada Ghana, Malaysia and many other countries have laws against marital rape. The institution of marriage continues to be in place, the difference is that women in these countries now have the agency to report sexual crimes against husbands. In India, the latest National Family Health Survey (NHFS-5) has revealed that 32% cent women in India who were married have experienced spousal physical, sexual, or emotional violence. 

This opinion stated by the judge has less to do with marital rape but more on marital control. It assumes women write off their agency and body autonomy in marriage, it assumes men are unintelligent creatures whose base urges overpower their sense of decency.
— #MeTooIndia (@IndiaMeToo) May 12, 2022

Yes, both parties expect and should expect sexual relations in a marriage that is healthy, and in absence of that the marriage dissolves. It does NOT mean that a husband can force themselves on a reluctant wife.
— #MeTooIndia (@IndiaMeToo) May 12, 2022

However, the stigma of reporting your husband for rape, being questioned by loved ones, society, police, disbelieved, and victim-blamed, is not to be taken lightly. The very reasons the Delhi HC order states that marital rape should not be criminalised, are the same reasons that women are compelled to not report domestic violence, including rape. Women face significant pressure to compromise and adjust, retain the “honour” of the family by maintaining the picture of a working marriage and lack the financial resources and independence leave abusive relationships. 
Fundamentally, the question simply is – why must a woman give up her bodily autonomy even once if she is married? Removing the marital rape exception would rectify a long-overdue idea that any sexual violence is inevitable in a marriage. A study of over 1,700 women who came to a public hospital-based counselling centre in 2008-2017, sheds light on this. Of the 79% women who were married in the study, 58% reported facing sexual violence, which, apart from forced sex, included reproductive coercion. “Despite this high proportion, it is likely that many women may not have disclosed marital rape to the counsellor due to shame and the perception of sexual violence as being part and parcel of intimate relationships. It is recognised that patriarchy allows men to exert sexual and reproductive control over women. It is, therefore, quite likely that the proportion of women experiencing marital rape is much higher,” it said. The study also found that in the cases where the women had reported marital rape to police or healthcare workers, they were not able to access remedies due to the marital rape exception in the Indian rape law. 
The study made an important observation about domestic violence and marital rape: “[…] rather than existing in isolation, sexual violence in marriage coexisted with physical, emotional, and economic violence.” Marital rape takes away a basic right of bodily autonomy for married women, and that it exists as an exception under the rape law delegitimises the reality of sexual abuse in many marriages. But if the institution of marriage depends on a woman’s sense of obligation for providing sex, or withstanding marital abuse including rape, it’s a deeper rot that needs fixing.

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