Women are victims of rape in India and all over the world, outside of marriage and within. While sanctions applicable to rape outside of marriage have tightened recently in India, (due largely to community pressure arising post the Nirbhaya case), the law continues to victimize married women by not recognizing marital rape as a criminal offence. The disturbing message that this archaic legal exemption sends out is that it is perfectly alright for a married man to chronically exert power over his wife (if she is above the age of 15), through the medium of abusive, violent and unwanted sex, whenever and wherever he chooses to do so.
It is possible that criminalizing marital rape is an inconvenient decision for a conservative government and it has been left to the judiciary to take action.
By continuing the right of irrevocable consent from married women towards their husband for sex, India is endorsing the continuing subordination of women. This regressive position is simply out of sync with not just International Conventions which classify marital rape as a human rights violation but also many countries as diverse as the USA, New Zealand, Russia, Nepal, Papua New Guinea and Colombia, to name a few.
Reasons for not criminalizing marital rape
The question that arises is why is India not willing to criminalize marital rape? Some of the more important reasons are as follows:
- Indian society advocates and maintains the traditional male-dominated view of marriage where subordination of the wife is the norm. This implies that a husband cannot do a moral wrong in relation to sex with his wife, for her consent has been granted by marriage. Thus, a reclassification of marital rape from a civil to criminal offense is viewed as a threat to the traditional view of marriage and a husband's sacramental superiority over his wife.
- Some Indian men are not willing to allow women full autonomy over their bodies because this would be a substantive step towards equality between sexes in India. So the marital rape criminal exemption is one of the mechanisms among others to ensure that this does not happen.
- The Indian government appears to subscribe to the idea that rape laws exist to regulate access rather than protect married women. This is why there have been hypocritical excuses put forward by the government and parliamentary panels in the past that due to factors such as cultural unacceptability, illiteracy, high poverty levels, rigid values, myriad customs and beliefs, concepts such as marital rape cannot be recognized in India, when rather these vary factors point out that it is so urgent to criminalize marital rape.
It is very clear that the interests of women need to be progressed in the matter of marital rape. It is also unacceptable for a country that is seeking to be a great power to continue to allow men to use marriage as a defence for rape.
The need for judicial activism
So how can the status quo change? To this end, should the strategy focus on tougher sentencing for the minor crime of marital cruelty (for cruelty accompanies marital rape)? Though longer sentencing will be applauded for marital cruelty, it will not be an effective deterrent in preventing marital rape and married women will continue to be discriminated by the law in this matter.
Principled advocacy may persuade the judiciary into intervening and acknowledging marital rape in defiance of the executive and the legislature.
Instead, should the strategy focus on public interest litigation, since marital rape is a matter where the public interest is at stake? The Constitution of India allows public interest litigation to be introduced under Article 32 and this was invoked in two separate writs in 2015 seeking to end marriage as a defence for rape. But the writs were thrown out, with different justifications provided by the court on each occasion regarding their decision. This suggests that for the time being the judiciary is siding with the executive and legislative position on marital rape. However, it should be noted that Indian legal history is dotted with cases where through principled litigation the judiciary has been compelled to undertake activism which ultimately brought much-needed justice to victims.
Principled advocacy may persuade the judiciary into intervening and acknowledging marital rape in defiance of the executive and the legislature. Judicial activism on this matter then may pressure the legislature to criminalize marital rape. This type of activism is wholly compatible with the broad nature of separation of powers in India. The judiciary will not be trespassing into spheres earmarked exclusively for the executive and the legislature because the Constitution supports the right to liberty for all Indians and marital rape is a denial of this. In any case, it is possible that criminalizing marital rape is an inconvenient decision for a conservative government and it has been left to the judiciary to take action—in such a scenario the judiciary must be assisted to do so.
Can "Friends of the Court" persuade the judiciary?
One way to assist the judiciary in undertaking activism on marital rape is for advocates to appear as amicus curiae (that is, a Friend of the Court), as an alternative to victims of sexual violence and non-consensual sex in a marriage initiating their own proceedings.
Through amicus participation, the judiciary can gain a more complete understanding of the moral and practical consequences of their decisions on the community.
Amicus briefs are the most common method of participation in public interest matters before the United States Supreme Court, and are an important tool in influencing judicial activism there. In India too, amicus writs have been used in a wide range of public interest matters. Amicus writs bring to the court's attention relevant matters, including legal principles, policy, facts and ethical issues that are beyond the litigation between parties, and are based on specialized knowledge or expertise. Through amicus participation, the judiciary can gain a more complete understanding of the moral and practical consequences of their decisions on the community. Amicus writs, if based on the principles of consistency and clarity can lead to societal changes, and should be part of a broad strategy for progressing criminalization of marital rape in India, for judicial activism may be the only hope of the nation on this matter.