Aankhi Ghosh

“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.” 

These words of immense wisdom by American President John Adams are very pertinent for us to recall today as the Delhi High Court gears up to decide upon the issue of criminalizing marital rape.

Crime and society are interlaced in a mesh so dense that it will take a responsible understanding of society to make a bold declaration as to what constitutes an offence and what doesn’t. To take a superficial, simplistic and sensational approach can be tempting, but toxic. The issue of marital rape in this context, will require a sensitive but poised approach, and the foremost step in that direction is to understand the advent of the institution of marriage itself.

A careful look at the history of marriage will reveal that ancient society was a nomadic one. With the wake of civilization, human beings systematized themselves into agricultural groups and slowly found the need to determine the paternity of children because so long as sexual relationships remained unfettered, it was only maternity that could be identified. It is the quest for this knowledge that gave birth to the institution of marriage.

To attempt to criminalize marital rape is to make an assumption that sexual intercourse is not essential to the institution of marriage whereas, historically, it is the very basis on which the marital union was founded.

So what is marriage? While romantics, sceptics and those in between have their own varied definitions, I intend to stick to the tame text of the law to gather the necessary knowledge. The Supreme Court of India in the case of Sirajmohmedkhan Janmohamadkhan vs Hafizunnisa Yasinkhan & Anr discussed the correlation between sexual intercourse and marriage and agreed with the “practical and pragmatic view” of Justice Sachar in the case of Rita Nijhawan v. Balkishan Nijhawan. 

In that case, while deciding on annulment of marriage on the ground of impotency, he had famously held that “marriage without sex is an anathema” and that “sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long”. He had also held in the same judgment that it was immaterial whether denial of sexual intercourse was the result of sexual weakness of an individual disabling them from having a sexual union, or if it was because of any willful refusal by them.

Section 12(1)(a) of the Hindu Marriage Act and Section 24(1)(ii) of the Special Marriage Act also make impotency a ground for annulment of marriage, thus establishing very visibly the intention of the Legislature that sexual intercourse is an important if not indubitable aspect of marriage.

Proponents of the argument that marital “rape” should be criminalized shy away from accepting this basic fact that the institution of marriage cannot be looked at independently of sex. There have been attempts to airbrush this argument by saying that marriage is “companionship” or “a union of souls” etc.

While the Legislature and the Judiciary agree with both of these definitions and more, I am sure, they have, in no uncertain terms declared their intention, as politically unpalatable as it might seem. So how can the Legislature or in this case the Judiciary, declare denial of sex in marriage to be “cruelty” and in the same breath have an offence called “marital rape” whatever its definition might be?

Let us go one step further and entertain the argument that this act should be made an offence to save the many women who are physically harmed during forced sexual intercourse within the garland of marriage. I state that the provisions in the Indian Penal Code criminalizing assault, hurt, grievous hurt, criminal assault etc. are sufficient to nurse the first time such a situation occurs.

To prevent a repeat occurrence, the victim in question may leave the perpetrator of such violence and live separately, following which Section 376(b) of the Indian Penal Code kicks in. This provision criminalizes sexual intercourse even with one’s own wife without her consent while she is living separately whether under a decree of separation or otherwise.

Some are even naïve enough to argue that a law to criminalize marital rape will deter the commission of such violent crimes. This argument is laughable at best. When has a law criminalizing rape itself prevented the commission of rapes? This brings me to the end of my second argument that the law as it stands today provides for adequate safeguards and remedies to protect a woman from the crimes envisaged within the ambit of “marital rape”.

Another dramatic but factually warped statement that is floated in favor of such a law is that several jurisdictions in the West have criminalized marital rape and to do so is the logical way forward as far as legal and civilizational growth is concerned. Aside from the argument that the socio-cultural fabric of India is like no other, it is also pertinent to observe that in most of these jurisdictions, the definition of rape itself is very different from ours.

Significant jurisdictions of the world such as those in England and Wales, Australia, most states in the USA, Canada and many others define rape as a gender neutral offence. On the other hand, in India, not only is rape a gender specific offence but also one which criminalizes a situation where an intoxicated woman has intercourse with a man, because it is assumed that she is “unable to understand the nature and consequences of that to which she gives consent”!

If we continue to enact such laws, it will do more disservice to the cause of women than adding value to their established rights. What constitutes masculinity is a social construct and such laws only entrench it further. Besides, it will be disastrous to the private and delicate institution of marriage if it is put through a tricky trial such as this – what with a vague wishy-washy understanding of what constitutes “consent” and therefore “rape”.

The last argument that I want to address as far as this illimitable debate is concerned is the contention that the system of arranged marriages in India results in a situation where a lot of hapless maidens are wedded to men without any element of consent and when sexual intercourse follows such a marriage, it amounts to marital rape.

In a situation where such a girl is below the age of 15, it amounts to statutory rape. For all other situations, the Prohibition of Child Marriage Act 2006, defines a ‘child’ as a boy below the age of 21 years and a girl below the age of 18 years and makes it voidable at the option of one of the parties to such a marriage.

In any case, the Supreme Court is currently dealing with the question of “child marital rape” for those between the ages of 15 and 18. For those above 18 years who are seemingly forced into such matrimony, the Legislature assumes consent. It will be inappropriate to assume otherwise since we are not a police state. Besides, making the registration of marriages compulsory in all states should take care of the issue of consent.

After analyzing the longstanding debate of criminalizing “marital rape” from various angles, the conclusion that can be arrived at is that the Legislature has suitably decided to not include an offence termed as such in the statute book. In any case, if the same is to be termed as an offence at some point in the future, it is again for the Legislature to do the same, and not the Courts, and the Legislature in its good judgment should define rape differently for the given context.

Incorporating a whole new offence in a section that is clear as day, and moreover amended only recently, is not just a clear smack to the doctrine of separation of powers but also sends all principles of interpretation for a royal toss. Equity cannot supplant, but only supplement the law.

We must of course have utmost respect for the Judiciary, but it is also important for us to have utmost respect for the Legislature which, of the two, is the organ that is literally by, for and of the people.

In G Krishta Goud & Bhoomaiah vs State of Andhra Pradesh, way back in the year 1975, a Supreme Court Bench presided over by the remarkable Justice VR Krishna Iyer sounded a worthy bell of caution when he noted,

“As Judges, we cannot rewrite the law whatever our views of urgent reforms, as citizens, may be.” 

We would do well to remember these words today.

The author is an Advocate practicing in the Bombay High Court and the Supreme Court of India. You can write to her at aankhi.ghosh@yahoo.com

The views expressed in this article are the personal opinions of the author, and do not necessarily reflect the views of Bar & Bench.