30/08/2017 4:45 PM IST | Updated 30/08/2017 5:24 PM IST

Before Defending Marital Rape, Govt Should Read What SC Said About Women's Right Over Their Bodies

This is real life, not a Sooraj Barjatya film for god's sake.

AFP/Getty Images
In this photograph taken on April 6, 2016, 'Meera' a victim of marital rape poses, sitting outside near her home in New Delhi.

Women, especially in India, are repeatedly told that if they have ever faced sexual violence or rape, they have been 'responsible' for it — by wearing clothes that 'provoked' the men, stepping outdoor after sundown unescorted, or simply by being visible.

So no wonder, men such as Swaraj Kaushal, married to Union minister Sushma Swaraj, and democratically elected governments, continue to believe that marital rape does not exist.

In the current scheme of things, a married woman would have forfeited even the limited right the society allowed her over her body. Clearly there should be some degree of difference between a man acquiring a toothbrush and marrying a fellow human being? But that obviously doesn't matter, since there's a bigger concern that needs to be addressed — the sanctity of the 'family'.

And just like cutting corners for a monthly budget, society sends the message that it's okay for a woman to trim her fundamental rights now and then.

Only, the highest court in the country believes otherwise. While declaring privacy a fundamental right for every Indian citizen, the Supreme Court brought up the issue of "the autonomy of a woman and, as an integral part, her control over the body" quite a few times.

First, while discussing a woman's right to keep or abort a foetus, the court cited the words of former Chief Justice Balakrishnan when he ruled on a case which had a pregnant 'mentally ill' woman at the centre. The court ruled in favour of her her autonomy to have a child as she was not 'mentally retarded'.

"The crucial consideration is that the autonomy of a woman and, as an integral part, her control over the body should be respected."

"The crucial consideration is that the autonomy of a woman and, as an integral part, her control over the body should be respected," Balakrishnan ruled, which the new judgment on privacy held up as an example of the kind of right women are allowed to have on their own body.

Following that, the court referred to several existing critiques of the idea of absolute privacy where feminists have argued that making privacy a fundamental right will actually help perpetrating domestic violence and subjugating women. The court recognised that as a valid concern and commented that it is even more relevant in the context of Indian society. And then went on to explain that the right to privacy, by any means, should not be allowed to be used an excuse to torture women within the realm of home.

"Patriarchal notions still prevail in several societies including our own and are used as a shield to violate core constitutional rights of women based on gender and autonomy. As a result, gender violence is often treated as a matter of "family honour", resulting in the victim of violence suffering twice over — the physical and mental trauma of her dignity being violated and the perception that it has caused an affront to 'honour'. Privacy must not be utilised as a cover to conceal and assert patriarchal mindsets," the SC said.

"Yet, it must also be noticed that women have an inviolable interest in privacy."

Ironically, for the Centre, it tasked the governments with the job to make sure that women have absolute privacy and the same right is not used to exploit them.

"Yet, it must also be noticed that women have an inviolable interest in privacy. Privacy is the ultimate guarantee against violations caused by programmes not unknown to history, such as state imposed sterilization programmes or mandatory state imposed drug testing for women. The challenge in this area is to enable the state to take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty," the court said.

It is safe to say that the Centre's submission to the Delhi High Court on marital rape indicated that the government had no intention of taking up such a 'challenge'. Would they dare disturb the universe vote bank? Clearly, not.

Commenting that criminalising marital rape will destabilise the institution of marriage and will be widely used as a tool to harass husbands, Live Law reported that the Centre had submitted: " cannot criminalise marital rape because India has its own unique problems due to illiteracy, lack of financial empowerment of females, mindset of society, vast diversity in the cultures of States which implement criminal law, and poverty etc."

It is not clear if the government consulted medical experts or took into account how other countries legislated against marital rape.

In fact, the Supreme Court judgment re-iterated that a woman's right to her body is unquestionable in several other instances. Referring to another verdict delivered by former Chief Justice AM Ahmadi, the court established that under no circumstance does a woman lose her right on her body and to object to sexual advances.

The case in question was that of a police inspector in Maharashtra who had entered the shanty of a woman and tried to rape her. Though the police officer was dismissed, the High Court quashed his dismissal questioning the woman's morals. Ahmadi's judgment overturning the HC judgment was very unfortunately worded — it called the victim a woman of 'easy virtue' as she has admitted to the 'dark side of her life' — but it reinforced the idea that her privacy is still inviolable.

"Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes."

"Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard," the older SC judgment asserted.

While the court makes no mention of marital rape anywhere in the over-500-page-long judgment, it provided enough ground for the government to reconsider its stand on marital rape which seems to be based on the assumption that women don't have any autonomy on their bodies post marriage. Though the domestic violence law does mention sexual abuse, the country's rape laws state that a woman cannot accuse her husband of rape if she had been living with the man at the time of the incident. Go figure.