Saptarshi Mandal. Australian Feminist Studies. Volume 29, Issue 81, 2014.
Introduction
Holding husbands criminally responsible for non-consensual sex with wives has possibly been one of the hardest feminist battles to fight the world over. Quite naturally, if the legal category of rape implies sex without consent and the legal understanding of marriage entails compulsory sex, then the two will be considered mutually exclusive and the very notion of ‘marital rape’ a contradiction and an impossibility. Indeed, the pronouncements of English jurists in the seventeenth and eighteenth centuries, such as Matthew Hale and William Blackstone, which provide doctrinal support for exempting husbands from the offence of rape, underscore exactly that: the conceptual impossibility of marital rape. For Hale, if the wife had consented to the matrimonial contract, then she could not retract that consent when it came to sex, which was an implicit term of that contract (Geis 1978). Similarly, for Blackstone, since the husband and the wife were one legal entity as per the Common Law doctrine of coverture, husbands could not be prosecuted for committing rape against wives, for one could not possibly be held responsible for committing a crime against one’s own self (1765a, 430). The irrelevance of the wives’ consent/non-consent to sex with husbands was not exceptional but was linked to the legal status of wives in general. The reason for which wives could not independently take up employment, practice law, enter into contract or own property was the same as the irrelevance of their consent to sex with husbands.
These legal disqualifications of wives in political and economic spheres have gradually withered away over the last century. Feminist critiques of rape and marriage have similarly produced significant changes in the laws governing each of these. Formally speaking, rape is no longer a crime of male property violation. Similarly, marriage is no longer an indissoluble sacrament that determines the legal status of women. Starting from the 1980s, most countries in the world have done away with the marital rape exception (MRE), either legislatively or judicially. In a number of countries, in addition to being a crime, marital rape is also regarded as a form of domestic violence with actionable civil claims. Yet, despite these legal advances, in these very jurisdictions the specter of impossibility continues to haunt actual instances of wives bringing rape charges against their husbands. Thus British courts are found to pass lower sentences in cases of marital/ relationship rape, than in other cases of rape, on the ground that the harm involved in the former is lesser than that in the latter (Rumney 1999). In Canada, where marital rape has been a crime for more than 25 years, both prosecutors and defence lawyers alike think that the sexual history of a couple is relevant to rape trials, because if the wife usually consents to sex in a certain manner or in certain circumstances, then the husband has every reason to presume her consent at every occasion, thus resuscitating Hale’s theory of continuous consent in marriage (Lazar 2010). South Africa criminalised marital rape in 1993 but, even after a decade, judges were found to pass lenient sentences against husbands convicted of rape, which prompted further legislative changes restricting judicial discretion (S v Moipolai 2004, 19; S v Modise 2007, 73). While feminists in many American states have succeeded in getting the MRE repealed, traces of the impossibility thesis are now encountered in the legal system’s attitude towards rape in non-marital intimate relationships (Anderson 2003), thus confirming Catherine MacKinnon’s conclusion, that the gradual repealing of the MRE from the penal codes, is ‘less like a change in the equation between women’s experience of sexual violation and men’s experience of intimacy, and more like a legal adjustment to the social fact that acceptable heterosexual sex is increasingly not limited to the legal family’ (1989, 176).
Against this broader global picture of feminist efforts against the MRE, on the one hand, and the persistence of the impossibility thesis and its reappearance in different guises, on the other, in this article, I shall discuss the recent encounter between feminists and the state in India over repealing the MRE in the Indian Penal Code (IPC). Between December 2012 and March 2013, popular and activist discourse around rape in India assumed spectacular dimensions with people going out on the streets, demanding security for women against violence and long-pending rape law reforms (Dutta and Sircar 2013). The outrage was triggered by the gang rape and murder of a female paramedical student in New Delhi. The government hurriedly responded by forming a three-member committee to examine existing laws and recommend changes to effectively address sexual violence. The committee (popularly known as the Verma Committee) came up with a 600-page report (Government of India 2013a) proposing large-scale changes to the criminal law governing sexual offences. In addition to a range of procedural changes in the law to make the legal system more accessible and the trial process more hospitable to victims of sexual violence, the committee recommended that the definition of rape should not be restricted to peno-vaginal penetration alone but must include all forms of penetrative sexual assault committed by men on women, men and transgender persons. The committee also recommended that consent must be defined as unequivocal voluntary agreement on the part of the victim; that the MRE must be repealed; that the immunity that members of the armed forces enjoy against prosecution for sexual offences must be repealed, and so on. Some of these recommendations made it to the Criminal Law Amendment Act (2013) that was finally enacted in April.
In all this, the issue of marital rape emerged as one of the key points of contention between feminists and the state and also as a subject of popular debate and discussion, in a manner that had not happened before in contemporary history. Feminists were joined by the Verma Committee, the Left political parties, civil liberties groups and large sections of the media in urging the government to repeal the MRE. It was argued that the relationship between the victim and the accused was immaterial in cases of sexual violence, that the immunity provided to husbands was anachronistic and inconsistent with the equality clause of the Indian Constitution, and that ‘[i]f the government insists on maintaining this exemption, it is incumbent on them to explain their defence of men who rape their wives with impunity’ (Kapur 2013). While no explicit ‘defence’ was offered in those terms, the considerations of the state behind retaining the MRE in the amended law on sexual offences can be gleaned from the official and unofficial statements made by different actors and agencies of the state, at different moments during this period. These were (1) that marriage in India was viewed differently from that in several Western countries which had repealed the MRE; (2) that allowing wives to bring rape charges against husbands was prone to ‘misuse’ by wives seeking to settle scores with their husbands on other accounts and (3) that even if marital rape was not criminalised, wives did have legal remedies in the civil law domain of domestic violence, and hence were not without legal protection. Eventually, the MRE was not repealed when the criminal laws were amended in April 2013.
I begin the paper by mapping the complex web of rules in criminal and civil law that regulate sexual violence in marriage in India. In the three following sections, I unpack the state’s arguments for retaining the MRE and show how the impossibility thesis is reproduced and sustained in contemporary discourses around marriage, sex and violence. To dislodge the hold of the impossibility thesis, feminists everywhere usually have clear and specific demands for law reform: repeal the MRE, disallow marriage as a defence in rape trials and provide sentencing guidelines for judges so that they do not underplay the seriousness of marital rape. In other words, feminist law reform efforts are geared towards making marriage irrelevant in rape law. While the most visible demands from feminists and allies during the period under study were along these lines, there was an internal debate going on among feminists on the politics, promises and potential downsides of criminalising marital rape. This internal debate, to which I turn towards the end of the paper, complicates our understanding of the issues at stake and forces us to think differently about how to challenge the impossibility thesis.
Legal Regulation of Sexual Violence in Marriage
Post the 2013 amendment, rape is defined by the IPC as penetration of a woman’s vagina/urethra/anus/mouth by the penis/mouth/objects/any other body part manipulated by a man, without the consent of the woman or irrespective of her consent, when she is below the age of 18 (Section 375, Indian Penal Code 1860). It is punishable by rigorous imprisonment for a minimum of seven years and imposition of fine (Section 376, IPC). The contentious exception clause to the above offence states: ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape’ (Exception 2, Section 375, IPC). This creates a distinction between wives and non-wives in terms of right to bring criminal charges against men for non-consensual sex. Similarly, men are also divided between husbands and non-husbands in terms of immunity from prosecution for rape; in one case, when an alleged rapist produced photographs in course of the trial, showing his marriage to the victim, he was acquitted by the trial judge (Majumdar 2003).
Wives are further sub-divided by the law on the basis of age and status of the marriage. As the exception clause quoted above shows, the MRE is inapplicable when the wife is a minor below the age of 15. The husband can be prosecuted for rape in such situations. Although 18 is the age of majority as well as the legally stipulated minimum age for marriage for women, child marriage is a widespread phenomenon in India. Hence, 15 is the age of consent for wives, while it is 18 for the others. The MRE has restricted application when the wife has been living separately from the husband, under or without a decree of judicial separation. In such cases, again the husband can be prosecuted but, if convicted, the minimum punishment is imprisonment for two years and imposition of fine (Section 376B, IPC). The legislative history of this concession to separated wives against rape by husbands reveals the hold of the impossibility thesis in otherwise progressive rape law reform. This clause was enacted in the year 1983, a watershed in the history of rape law reform in India, when major changes were brought in the law of rape for the first time since its enactment by the colonial state in 1860. The parliamentary committee that gave final shape to the 1983 amendments was reluctant to treat non-consensual sex between a separated couple as amounting to rape, on the ground that a rape charge might mar the chances of reconciliation between a separated couple and make divorce inevitable. Hence, the minimum sentence stipulated for this category of rape was set much lower than that in general. The 2013 amendment further enacted a clause prohibiting courts from taking cognizance of allegations of rape made by a separated wife, unless the court is ‘prima facie’ satisfied that the facts indeed constitute such an offence (Section 198B, Code of Criminal Procedure 1973). This, in effect, made it difficult for separated wives to bring rape charges against their husbands.
To summarise the regulation of marital rape in criminal law, a minor wife below 15 is allowed maximum protection against rape, a separated wife above 15 has limited protection and a cohabiting wife above 15, no protection. Similarly, a husband enjoys absolute immunity in case he rapes a cohabiting wife above 15, restricted immunity in case of a separated wife above 15 and least immunity in case of a minor wife below 15.
Beside criminal law, sexual violence in marriage is also regulated by the civil law domains of divorce and domestic violence. Sexual violence by the husband could be regarded as a form of ‘cruelty’, which is a ground for divorce under all the religious and secular matrimonial laws. It also amounts to ‘sexual abuse’ under the law addressing domestic violence enacted in 2005, under which aggrieved wives or female live-in partners can claim civil remedies, like injunction against violence, dispossession from home or direction to the husband/partner to pay maintenance (Protection of Women Against Domestic Violence Act 2005). The scope of these two civil law consequences of sexual violence in marriage will be discussed in detail in Section 5. Here, however, I will just make some comments on the regulatory aspects of the legal framework described above.
First, to the extent that criminal law has a regulatory function of influencing and controlling individual and social behaviour, sexual violence by husbands is subjected to minimal regulation by the IPC. Instead, the criminal law itself is regulated by the culturally valued notion that marriage must be shielded from public scrutiny and its continuance must be ensured at all costs. The law kicks in to regulate sexual violence in marriage only in cases when it is accompanied by extreme physical violence or when the health and safety of the wife is endangered, as in the case of minor wives. Second, the strict distinction that the criminal law makes between marriage and non-marriage in regulating sexual violence is unsettled by live-in relationships, which may not have the legal label of marriage but may still share all the substantive features of one. Sexual violence in live-in relationships thus results in regulatory paralysis, as it were, in the minds of judges and legislators, as was seen during the law reform period (Jain and Chakrabarty 2013). Third, even though in theory sexual violence in marriage is regulated differently by the criminal and the civil laws, they may not operate independently of each other in practice. There is very little evidence to support this claim at the moment, but it would be instructive to probe as to what extent the judicial determination of the civil law remedies for marital rape is influenced by its non-recognition in the criminal law. Finally, for cohabiting wives above 15 facing sexual violence, the only options that the law creates are to either leave the marriage, in which case they are likely to become economically worse off (Singh 2013), or to stay in the marriage with the hope of reforming the husbands’ behaviour through injunctions against domestic violence. For most wives, then, the criminal law offers no protection against sexual violence by husbands, and the civil law remedies offer recourses that are likely to be unfavourable to them in the long run.
Having described the law and its regulatory effects, I now turn to the justifications given by the state in retaining this unfair legal framework, during the recent law reform debates.
‘Marriage as a Sacrament’ and Other Stories of Cultural Nationalism
In almost every newspaper report (Hindustan Times 2013) and television interview (IBN Live 2013) during the law reform process, the Law Minister Ashwani Kumar maintained that the foremost argument against criminalising marital rape was that marriage in India was different from that in the West, in that it was not viewed as a contract but as a sacrament. The implication being that, the divinely ordained union that marriages in India were, the rights and obligations of spouses in conjugal relations were beyond the scope of regulation by criminal law. Presumably, this was in response to the irony that was being pointed out by the opponents of the MRE: that in not criminalising marital rape, India, the world’s largest democracy, was placing itself in company of a handful of countries with disreputable democratic and human rights records.
On the face of it, the argument of the Law Minister is problematic as it projects the understanding of marriage in classical Hindu law as the ‘Indian’ view of marriage, thus eliding the conception of marriage in other systems where it is viewed as a contract, such as Muslim law or customary law practiced within several indigenous communities. In India, aspects of family life such as marriage, divorce, adoption, inheritance, and so on, are governed by the religious laws of each community. The explanation for this lies in the colonial origins of the current Indian legal system. While the laws regulating criminal justice and economic life were made uniform for all communities by importing principles of English law (for example, the Indian Penal Code 1860 and the Indian Contract Act 1872), the colonial state sought to preserve the religious beliefs and customs of the natives and hence refrained from interfering with them. Consequently, a dual system of laws came into existence, one for the public sphere and one for the private sphere. Further, within the private sphere, each community was governed by its ‘own’ religious laws, which were administered by the British courts. Post-independence, the modern Indian state continued with this plural legal system, whereby marriage and other aspects of family life of each community are regulated differently as per their conception in the religious and customary rules of the community. However, notwithstanding the correctness of characterising marriage in India as ‘not contract’, what is relevant to note here is that the question of whether marriage is a contract or a sacrament has been fertile ground for articulating a cultural nationalist politics since the nineteenth century.
In classical Hindu law, similar to canon law, marriage was a sacrament. Fathers had a religious obligation to marry off daughters before they reached puberty. In 1860, the Indian Penal Code fixed the age of consent for girls at 10, but the law had no impact on the practice of child marriages. Towards the late nineteenth century, social reformers, under the aegis of the colonial state, sought to abolish child marriage by raising the age of consent to 12. This created a rift between the reformers, who wanted to use the authority of the colonial state to improve the status of Indian women, and the nationalists who saw, in any such move, an unjustified intervention of an outsider authority in the private realm of religion and the home. Two cases further galvanised the debate. In 1885, Rakhmabai, a young woman who was married as a child refused to live with her husband, who in retaliation filed a case of ‘restitution of conjugal rights’. After a long legal battle, the husband’s claim was upheld by the British Privy Council. In 1890, Phulmonee, an 11-year-old child bride who was raped by her 35-year-old husband, died as a result of the injuries sustained. Her husband was prosecuted for his ‘rash and negligent act’, and not rape as she was above the age of consent. The two cases, which have been written about in detail elsewhere (Chandra 1998; Sarkar 1993) furthered the case for introducing the idea of ‘consent’ in Hindu marriage through legislation, in the face of stiff resistance from the nationalist elite whose opposition was pegged on the sacramental nature of the Hindu marriage. While the age of consent law was ultimately passed in 1891, the episode, as feminist historian Tanika Sarkar has written, aided the nationalists in consolidating the Hindu home as a space of spiritual purity, community tradition and self-governance, uncontaminated by the state (Sarkar 1993, 1870–1871).
Post-independence, the law governing marriage for Hindus was modernised, codified and recast along the lines of English matrimonial law, and the Hindu Marriage Act (1955) was enacted. The sacramental aspect of traditional Hindu marriage was reduced to the lone requirement of a religious ceremony. The chief ingredient of modern Hindu marriage was consent of the parties, which was sought to be secured by stipulating minimum age for marriage and mental capacity to consent. As Family Law scholars and practitioners generally agree, however, the reformulation of the Hindu marriage as a contract between consenting adults is a myth because judges continue to interpret the Hindu Marriage Act within the framework of marriage as a sacrament. As a result, at least till the mid 1970s, one could discern trends in judgements whereby the consent of wives were subordinated to the ‘conjugal rights’ of husbands. Should consent to a marriage be obtained by force or by fraud, the Hindu Marriage Act does allow either party to opt out of the marriage. Sociologist Patricia Uberoi has observed, however, that in judicial practice, the understanding of ‘force’ and ‘fraud’ is much broader than what they imply under the law of contract. Uberoi cites judgements where the consent of parents to the marriage proposal or the marriage ceremony is deemed as sufficient proof of consent of the parties to the marriage (1997, 190–195). Judicial decisions show that, to a greater or lesser degree, aspects of the sacramental understanding of marriage pervade the judicial discourse on the rights of wives in marriage. Feminist activist and legal scholar Flavia Agnes therefore argues that the woman’s age in modern Hindu marriage functions simply as a signifier of her sexual maturity, as it did not automatically translate into a sign of her active consent (2011, 7).
Marriage in Muslim law, on the other hand, is regarded as a contract which enables the wives to claim and negotiate a range of rights while entering into marriage and at its dissolution. The contractual nature of the Muslim marriage was recognised by the English courts in colonial India, which upheld the rights of the wives by interpreting their marriages as contracts. Agnes, through her discussion of some of these judicial decisions, shows how the Muslim wife was regarded as an ‘active agent’, who could determine the terms of the marriage contract, enforce pre-nuptial agreements against husbands and in-laws, opt out of the marriage contract upon attaining puberty (threshold of maturity in Muslim law) and claim a range of economic rights in marriage (Agnes 2011, 4–6). After independence, however, the contractual model of marriage in Muslim law, with relatively more effective protections for the rights of the wife, was devalued as it did not enjoy the ideological favour acquired by the Hindu Marriage Act. Since Muslim family law did not undergo state-led reform and codification like its Hindu counterpart, it led to the assumption that Muslim law was unchanging and that it gave less rights to women than Hindu law. This mistaken view has been propelled further by the political rhetoric of the Hindu Right—a cluster of right-wing Hindu religious and political organisations dedicated to the propagation of Hindu cultural values and the establishment of a Hindu state—which projects that the Hindus are governed by secular and gender-just laws, while the Muslims constitute a threat to national integrity as they insist on being governed by their own group law. Similar to the nineteenth-century nationalists, for the contemporary Hindu Right ideologues women,the home is the embodiment of Hindu cultural supremacy and national essence, which must be shielded from the value systems of both the external Other (the West) and the internal Other (Muslim). One of the main poll promises of the Bharatiya Janata Party (Indian People’s Party)— the political arm of the Hindu Right—has been to end the ‘special treatment’ accorded to minority communities and enact uniform family laws for all Indians.
In such a context of communal politics, invoking the idea of ‘marriage as a sacrament’ not only forecloses the question of women’s consent in marriage and various facets of the conjugal relationship, but it also plays into a virulent cultural nationalist project.
The Innocent Husband and the ‘Misuse’ Argument
Lurking behind vague statements by the government that recognising marital rape will result in ‘practical difficulties’ (Rediff News 2013) was the apprehension that, if the law allowed wives to bring rape charges against husbands, it will be difficult for the latter to defend themselves. As Madhu Kishwar—a former women’s rights activist who has subsequently become an ally of anti-feminist men’s rights groups—asked, ‘how does a man prove that the sexual relation on a particular day or night with his wife was with her consent? Have her sign an affidavit every time they go to bed together?’ (Manushi 2013). Questions of evidence in cases of marital rape are indeed difficult issues, especially when the victim does not bear physical signs of violence, but Kishwar’s question occludes the real issues at stake. Even if marital rape were to be recognised by the law, the burden will be much more on the wife to prove that the alleged sexual act was without her consent than that on the husband to prove the opposite. After all, the culturally prevalent belief that consent to sex can be presumed in marriage does not disappear from the administration of the law, even if the law provides otherwise. This is borne out by all the examples cited in the introduction, from jurisdictions where marital rape is recognised and also by the experience with the Indian law addressing domestic violence, discussed in the next section.
Not surprisingly, this idea of innocent husbands as the potential victims of marital rape law resonated with and built upon a pre-existing theme having wide leverage within the legal system as well as the wider society, that women tend to ‘misuse’ laws meant for their protection to harass and intimidate hapless husbands. This notion of misuse, which began circulating in the early 1990s as a patriarchal backlash against a criminal law provision targeting domestic violence, was invoked time and again as a lesson that one must keep in view while enacting laws targeting violence against women. Thus, the Law Minister justified the government’s decision to not include marital rape in the law reform by stating to a newspaper: ‘There is a need for introspection and reflection to ensure that laws are not capable of being abused. If there are gaps in the law, it can lead to gross violation’ (Hindustan Times 2013).
That this anxiety was shared not only by the government but also by a significant section of the legislators is revealed by the frequency with which it was referred to during the parliamentary debates over the amendments. During the debate in the Lower House (Lok Sabha) of the Parliament, out of 29 members who spoke, 12, cutting across political parties and gender, talked about the need for stringent legislations to protect women from violence and cautioned against misuse of such laws by women, in the same breath (Government of India 2013b). Only Priya Dutt, a female member from the ruling Indian National Congress party, emphasised that the constant invocation of ‘misuse’ detracts attention from the fact that most victims of sexual violence are denied access to the legal system in the first place (Government of India 2013b, 23).
Indeed, feminist activists and organisations have pointed out for a long time that the proponents of the ‘misuse’ argument do not have any empirical basis. In the experience of individual women who approach the legal system or women’s organisations supporting such women, it is seen that—be it registering a case or prodding the police to carry out investigation or enforcing a court order if the woman is lucky enough to get a favourable one—at every stage in the legal process, women run up against innumerable hurdles and are constantly advised to withdraw their cases (Basu 2006; Special Cell for Women and Children 1999). Similarly, review of judicial decisions show the hostile attitudes of the judiciary towards women claiming rights, in general, and in particular, those women who claim rights against their husbands or families (Agnes 1996). For most victims of domestic or sexual violence, approaching the legal system, proving one’s case and getting remedies is thus both difficult and rare. The inaccessibility of the legal system is further compounded by a woman’s class/caste position and rural/urban location. Consequently, the ability of women to manipulate the system also depends on these markers of privilege.
The picture that the ‘misuse’ lobby projects, therefore, both overstates the problem of false complaints and misrepresents the issues at stake. If anything, as feminists lawyers and activists argue, the threat of criminal sanction is the lone bargaining tool that wives have to protect their interests against husbands, since the laws of marriage as well as the legal system are largely unfavourable to them. Arguably, it is in this context that the criminal sanction against marital rape must be assessed, even if the law remains unenforced in practice.
Privatising Marital Rape and the Promise of Civil Remedies
Feminists are familiar with the argument of the sanctity of the family to justify non-intervention by the state. The opposition to the repeal of the MRE not only played on this age-old theme of sanctity of marriage and family but also posited the family itself as the pre-eminent dispute settlement body to address sexual violence within marriage. As a female legislator, Sumitra Mahajan, said during the debate over the Amendment Bill in the Lower House of the Parliament: ‘We have our own peculiar family system and the counseling is done within the family. The counseling should be done within the four walls of the house’ (Government of India 2013b, 13). Similarly, the parliamentary committee that examined the government’s law reform proposals prior to the legislative debates, stated the following in their report:
The committee felt that if a woman is aggrieved by the acts of her husband, there are other means of approaching the court. In India, for ages, the family system has evolved and it is moving forward. Family is able to resolve the problems, and there is also a provision under the law for cruelty against women. It was, therefore, felt that if the marital rape is brought under the law, the entire family system will be under great stress, and the committee may perhaps be doing more injustice. (Government of India 2013c, 47)
While not denying the possibility of sexual violence in marriage, what was being stated was that recourse to criminal law to deal with the issue would be an unjustified interference in the familial domain. Instead, the committee pointed out that, in spite of the MRE in the Penal Code, wives did have remedies against forced sex which lay in the domain of familial dispute resolution and the civil law domain of matrimonial disputes and domestic violence. Rape in marriage was thus sought to be framed as a private dispute between husband and wife, adequately addressed through existing remedies in civil law. In this section, I problematise this position by looking at the scope of these legal remedies, the manner in which they are administered by the courts and what realistic implications they have for wives facing sexual violence.
Forced sex by husbands upon wives has legal consequences in Indian matrimonial law, in that it could be treated as a matrimonial fault, resulting in dissolution of the marriage. All the religious personal laws and the secular law governing marriage and divorce in India deem ‘cruelty’ by a spouse on another, to be a ground for divorce. The originally enacted Hindu Marriage Act provided that in order to constitute a ground for divorce, an act of cruelty should be such that it should ‘cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party’ (Section 10(1)(b) 1955 [pre-1976]). The requirement of proving reasonable apprehension of harm or injury was removed by an amendment to the Act in 1976, which liberated this clause from the high standard of proof that it cast on the petitioners. While the term ‘cruelty’ is not defined by the law, judicial interpretation of the term in concrete cases has given it a wide range of meanings, from refusal to have a child to false allegation of adultery against a spouse to the wife not serving tea to the husband.
My search into reported judgements yielded only two instances under the Hindu Marriage Act—one of them pre-amendment and the other post—where forced sex by husbands upon wives was acknowledged as cruelty, and the wives’ petitions for divorce were granted on that basis. In the 1964 case of Kusum Lata v Kampta Prasad (All India Reporter 1965), the wife petitioned for judicial separation on the ground of cruelty. The wife argued that unfounded accusations of unchastity against her by the husband, the latter’s failure to get her treated despite her serious illness and the latter’s insistence on sexual intercourse against her wishes had led to a reasonable apprehension of harm to herself, and hence it constituted cruelty against her by the husband. The wife’s petition, however, was dismissed by the trial court and, on appeal, by the district court too. On further appeal, the Allahabad High Court held that the lower courts had shown a tendency to favour the husband and rationalise his actions, while making light of the wife’s grievances. Specifically, on the point of forced sexual intercourse by the husband, Justice M. H. Beg observed:
The lower appellate court has, very lightly, dismissed this matter by observing that all young and newly married husbands are liable to indulge in sexual relations with their wives rather excessively. The lower appellate court also observed that, after reading the evidence, it appeared that the appellant wanted to dictate to her husband the time when he should have sexual relations with her. It appears to me that the approach of the lower appellate court towards the whole subject of relations between a husband and wife is completely out of tune with the times and in conflict with the ideas underlying the concept of cruelty […]. That concept appears to me to be one which is based on mutual regard and consideration by each spouse for the other. It excludes, in my opinion, selfish brutality or disregard for the health, needs, desires, and feelings of the other by either spouse even in a matter such as sexual relations between the two. (Para 27)
Convinced that the wife was justified in seeking judicial separation from the husband on the ground of cruelty, the High Court granted the wife’s appeal.
The second example, which is from the post-amendment period when the notion of cruelty was much more liberalised, is the 1997 case of Vinit Joglekar v Varsha Joglekar (All India Reporter 1998). The wife in this case filed for divorce on the ground of cruelty. In addition to complaints of violence, ill-treatment and harassment to herself and the children, the wife complained of the husband’s ‘abnormally increased demands for sex’. The wife also alleged that the husband used to force her to watch ‘blue films’ and engage in ‘unnatural carnal relations’ that he used to read about in pornographic books. Both the lower court and the appellate court were satisfied that the wife had established that she was treated with cruelty by the husband and she was granted divorce.
While the notion of cruelty in the Hindu Marriage Act does not refer to any specific sexual offence, the Indian Divorce Act of 1869, which governs the dissolution of marriages among the Christians in India, allows the wife to initiate divorce, if the husband commits rape, bestiality or sodomy, with anybody, including the wife (Indian Divorce Act Section 10). In Grace Jayamani v E.P. Peter (All India Reporter 1982), the wife filed for divorce on the ground of ‘non-consensual sodomy’ and the court granted the same. In addition to the specific ground of sodomy, the wife in this case complained that the husband would force her to have sex against her wishes, even when she had fever or was menstruating. The wife’s father, to whom she had confided, further testified about the nature of sexual violence committed by the husband. Based on a colonial period precedent from 1882 that held that a husband could be held guilty of committing sodomy on his wife if it was non-consensual and that it allowed the wife a valid ground for divorce, the court concluded that the wife’s testimony in this case had sufficiently established that the husband had committed sodomy on her against her wishes and granted her divorce.
The extremely small number of judicial decisions that acknowledge forced sex by husbands upon wives as harms with legal consequences suggests that it is not a ground usually taken by wives while seeking divorce or judicial separation. This could be either due to their own perception that forced sex by husbands does not amount to rape or any significant harm entailing legal redress. Or it could be owing to a pragmatic concern that their allegation of forced sex by husbands will not be taken seriously by the judges and that it would weaken their petition for divorce. After all, in two out of three judgements referred to above, the allegations of forced sex by the wives were accompanied by other aggravating circumstances of violence and ill-treatment. It is doubtful if the wives’ petitions for divorce would have been granted if they were based on the ground of non-consensual sex alone.
Since 2005, forced sex by husbands or male live-in partners has found cognizance in another area of law, offering a different set of reliefs. The Protection of Women from Domestic Violence Act 2005, deems ‘sexual abuse’ against wives or female live-in partners as domestic violence with actionable civil claims, such as protection orders, separate residence, payment of maintenance and compensation (Section 3, Explanation 1[ii]). No appellate court to date has had the opportunity to decide a case under this Act involving an allegation of marital rape, but a look at trial court orders helps us understand the extent of its usage by women and the manner in which magistrates have been addressing such claims (Lawyers Collective Women’s Rights Initiative 2008, 2009, 2010, 2011, 2012, 2013). The number of cases with women complaining of sexual abuse by husbands or male live-in partners has steadily risen over the years and the courts have awarded reliefs in such cases. A common finding across the years, however, is that in most cases, the magistrates neither elaborate on the allegations of sexual violence made in the petitions nor specify in their orders if the relief is being granted in light of the sexual violence committed by the defendants. Since complaints of domestic violence contain allegations of sexual abuse along with other instances of abuse, it is difficult to infer the weightage given to the former by judges while granting relief to aggrieved women. Nevertheless, the absence of any discussion in the orders on the charges of sexual abuse made by women, the nature of evidence used in making these claims or whether such evidence was accepted by the courts or not, itself may be taken to suggest that complaints of sexual violence are not taken seriously by the judges, while deciding domestic violence claims (Lawyers Collective Women’s Rights Initiative 2010, 140). Whether this is on account of its non-recognition in criminal law is a question that requires further research.
Thus non-consensual sex in marriage, even when it has legal consequences, is not recognised for what it is. Instead, couched in a broad understanding of domestic violence, an act of non-consensual sex derives its legal significance from other accompanying acts of violence. An advantage of this for the wife facing sexual violence is that she does not have to prove every alleged act of non-consensual sex beyond reasonable doubt, as is required by criminal law. On the other hand, she may not succeed in getting divorce or an order of maintenance if she bases her claim on acts of non-consensual sex alone.
Feminist Conundrums and Rethinking Criminalisation
In popular imagination and media representation, the feminist position in the law reform debates was that of an unequivocal demand to repeal the MRE. Indeed, for many Indian feminist scholars (Gangoli 2007; Kumari 1999; Kapur and Cossman 1996) and activists (Krishnan 2013), the MRE is the most explicit example of how the law perpetuates sexual subordination of wives within marriage. That was the position articulated in all the submissions made by women’s groups to the Verma Committee and to the government and in the press statements that were issued when the final amendment did not accede to that demand. There were also, however, feminists who questioned the premise on which the demand for criminalising marital rape was built.
As mentioned before, most feminist interventions against the MRE were based on the refrain that ‘consent to marriage should not be equated to consent to sex’. But we have also seen that consent of the parties to the marriage plays a limited role in practice, although Indian law deems it an essential condition for a valid marriage. Thus, a question was raised about the inherent contradiction in demanding that forced sex in marriage be criminalised, when forced marriage itself was unchallenged (Menon 2013). Given that notions of compulsory marriage and compulsory sex in marriage are so intertwined with each other and deeply entrenched both socially and legally, what would it mean to proscribe one but leave out the other? As feminist scholar Rohini Hensman elaborated:
It is one thing to say that marital rape should be regarded as an act of domestic violence and should be grounds for divorce—that should be relatively non-controversial. But given that marriage is a sexual relationship, should all cases of marital rape be punished with 7 years or more in jail? (…) Unless we are demanding very clearly that the state ensure that all marriages are consensual (are we? in which case, how?), then we can hardly demand that he should be jailed for [7] years—that is simply inconsistent and unfair too. (Hensman quoted in Menon 2013, italics in original)
Further, if there is sexual violence in marriage, surely a reasonable recourse would be to end the marriage. Feminist scholar Nivedita Menon (2013) thus wondered if it was ‘preferable for a woman to have a husband in the prison than be divorced?’
In response, activists Kavita Krishnan and Apoorva Kaiwar (in Menon 2013) argued that if there was sexual violence in marriage it must be for the wife to decide whether to file for divorce or bring rape charges against the husband or do both. Many wives may not even report rape, for a number of reasons. Notwithstanding what course of legal action the wife pursued, it was unreasonable for the law to deny her the option of bringing rape charges against the husband. Additionally, the purpose behind making non-consensual sex with wife a criminal offence was precisely to dislodge the notion, both legally and socially, that the wife’s consent to sex within marriage was either presumed or irrelevant.
From a different position, feminist legal scholar Flavia Agnes (2013) argued that forced sex by husbands upon wives, even though fairly common in marriages, should not be dealt with under the rape law. Agnes argued that sexual violence in marriage was not limited to forced sexual intercourse or forced insertion of penis/objects into bodily orifices of women, acts that the law of rape criminalised. Sexual violence in marriage included acts ranging from excessive demands for sex by the husband, at particular times such as during menstruation or immediately after childbirth, to forcing the wife to have sex with the husband’s friends, to threatening the wife that the husband will stop having sex with her if certain demands were not met. Such instances of sexual violence were in turn often part of a continuum of other forms of domestic violence committed against the wife. There was no reason, according to Agnes, why feminists should privilege penetrative sexual violence over other forms of domestic violence, both sexual and non-sexual, while seeking legal protection for wives. If anything, ‘selectively placing penetrative sexual assault on a higher pedestal’ simply rehearses patriarchal values attached to acts of penetration (Agnes 2013). Further, in a context where judges were reluctant to convict husbands for offences against wives carrying much lower sentences—and instead sent couples for mandatory prelitigation mediation—Agnes argued it was unrealistic to expect them to convict husbands of marital rape and sentence them to seven years of imprisonment. For Agnes, therefore, an optimal strategy was to use existing criminal and civil law remedies against domestic violence creatively to get favourable relief for wives facing sexual violence (Majlis Legal Centre 2013).
In a different but related context, law professor Janet Halley and others have written, how on a range of contemporary issues pertaining to sexual harm, feminist analysis and advocacy tends to imagine ‘criminal law reform to operate simply by actually eliminating precisely and only the conduct it outlaws’ (Halley et al. 2006, 340). Thus, in the Indian case, those in favour of criminalising marital rape focus their attention on the MRE alone but do not take into account the high evidentiary standards that the criminal law may demand of the wife alleging marital rape, or how her economic claims in marriage may be affected if her allegation of rape is not proved. Agnes’s position, that instead of relying on the criminal law we devote our political and legal energies into strengthening the civil law remedies available to wives, stands out in this regard for having the force of both feminist politics and a realistic appreciation of the legal system. At the same time, criminal sanction against marital rape—even if unenforced in practice—might influence the way judges and other actors in the legal system perceive sexual violence in marriage while deciding equitable divorce settlements or wives’ claims of domestic violence. This expressive function of criminal law should not be discounted.
Reviewing the mobilisations and law reform efforts against rape in police custody by Indian feminists in the 1980s, feminist scholar Geetanjali Gangoli notes that a narrow understanding of ‘custody’, limited to police lock-ups and prisons, prevented feminists from extending that analysis of power and sexual violence to institutions of family and marriage in the subsequent years (Gangoli 2007, 84–85). As a result, sexual violence against women within the family, including marital rape, could not become a central issue in feminist anti-rape campaigns (2007, 95). But when marital rape did appear on the movement’s agenda in a major way in the recent anti-rape campaign, it was seen that most feminist interventions focused on the MRE in isolation, bypassing a broader analysis of how marriage exercises custodial control over wives through complex interactions between the rules governing sexual and economic aspects of marriage. We need to broaden the scope of our analysis of sexual violence in marriage to understand the nature of this custodial control. The terrain of marital sexuality is much more complex than other relationships of power in which sexual abuse takes place. After all, data from domestic violence cases show that wives approaching courts with claims of ‘sexual abuse’ not only complain of non-consensual sex by husbands but also of husband’s refusal to have sex (Lawyers Collective Women’s Rights Initiative 2010, 2012, 2013). This is further complicated by the fact that marriage is a relationship of economic dependency and well-being for a large number of women. The internal debate among feminists that I have described above, while problematising the invocation of consent or the reliance on the criminal law in challenging the impossibility thesis, also underlines the need for a more nuanced rendering of how power operates in marriage.
Conclusion
In this article, I have tried to capture a brief period in the life of contemporary Indian feminism when contestations over the meaning of sex, violence and marriage, and how to translate these into concrete legislative formulations, were most sharply foregrounded. Even though the mobilisations to repeal the MRE did not succeed, the process was instructive for it helped underscore the fact that the challenge for feminists is no longer a straightforward question of mobilising political support to repeal the MRE. The discourse in which the state framed the issue of marital rape showed that the ways in which the impossibility thesis is currently sustained are very different from its original articulation by seventeenth- and eighteenth-century jurists. Consequently, feminist strategies to challenge the impossibility thesis must also move away from simply foregrounding legal personhood of the wife or the legalistic notion of consent. Factors such as the non-enforcement of criminal laws regulating family life, the lower burden of proof and greater scope for negotiation in civil law remedies, the complex interactions between criminal and civil laws regulating marriage, divorce, property distribution, and so on, must form part of the analysis.
To be sure, the MRE must be repealed and the struggle to do so must go on, but alongside, I suggest that we seek a new point of entry into the marital rape debate by returning to the questions of what is marriage and how it should be regulated by the law. This will allow us to actively place issues of sexual and reproductive labour and equitable property distribution in marriage, and also help us to outline both the sexual and non-sexual harms more clearly. If the feminist certainties regarding the road to marital rape law reform seem less clear now, then I think this is the moment for feminists to theorise marriage more rigorously, as a sexual and economic relationship.