Re: [pmarc] Are husbands violating the constitutional rights of the wife to equality, dignity, and bodily integrity?
John Dayal
On 16-May-2022, at 10:55 AM, acmic...@gmail.com wrote:
Dear Friends,
Those who read Hindustan Times may have come across “Mind The Gap” column of Namita Bhandare titled THE BIG STORY: He said/He said published on Sunday, 15th May 2022.
I am taking the liberty of sharing here with an invitation for a respectful discourse on a subject that concerns every married man and woman.
I join her in asking: Is it a crime for a husband to rape his wife? The Delhi high court couldn’t decide and the question is now inevitably headed to the Supreme Court, Meanwhile, government data released this past week paints a pretty sorry story of domestic violence in India.
Two Delhi high court judges, Rajiv Shakdher and C Hari Shankar could not agree on whether marital rape should be criminalised. What they did agree on, however, was that the case could move to the Supreme Court since substantial questions of law were involved.
The judges were hearing a bunch of petitions first filed seven years ago to look at an exception in India’s rape laws that exempts a man from the charge of rape even if he forces his wife to have non-consensual sex.
The question before the judges was whether this immunity to husbands went against the constitutional rights of women to equality and dignity, sexual autonomy and bodily integrity.
Here’s what they said in the 393-page judgment.
Question before the court
Rajiv Shakdher (RS): The poser before the court is: Should a husband be held criminally liable for raping his wife who is not under 18 years of age?
C Hari Shankar (CHS): The issue at hand is fundamentally simple, as the principles for invalidating a statutory provision as unconstitutional are trite and well-recognized…All that the court has to do is to apply these principles to the impugned exception.
The idea of consent
RS: Consensual sex is at the heart of a healthy and joyful marital relationship. Non-consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals. The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being. Non-consensual sex destroys this core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate.
CHS: There can be no compromise on sexual autonomy of women, or the right of a woman to sexual and reproductive choice. Nor is a husband entitled, as of right, to have sex with his wife, against her will or consent. Conjugal rights end where bodily autonomy begins.…[But] just as every incident of taking of the life by one, of another, is not murder, every incident of non-consensual sex of a man with a woman is not rape.
Modern marriage
RS: When marriage is a tyranny, the state cannot have a plausible legitimate interest in saving it. In every sense, the marital rape exception, in my view, violates the equality clause contained in Article 14 of the Constitution… with one stroke it deprives nearly one-half of the population of equal protection of the laws.
CHS: In our country, marital vows are still regarded as inviolable, and marital fidelity is, fortunately, still the norm, profligacy being the exception (even if adultery is no longer a criminal offence). The sexual aspect is but one of the many facets of the relationship between husband and wife, on which the bedrock of their marriage rests.
Expectation of sex within marriage
RS: 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.
CHS: The primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex.… Sex between a wife and a husband is sacred.
In no subsisting, surviving and healthy marriage should sex be a mere physical act, aimed at gratifying the gross senses. The emotional element of the act of sex, when performed between and wife and husband, is undeniable.
Judiciary v legislature
RS: It is incumbent on courts to take decisions concerning complex social issues and not dribble past them, as that is the mandate of the Constitution and, therefore, a duty and obligation which must be discharged if one is to remain true to the oath taken under the Constitution.
CHS: The court cannot substitute its view for that of the legislature, and hold, definitively, that treating non-consensual sex by a husband with his wife would not imperil, or threaten, the marital institution.… A court may differ in its view. That cannot, however, be a basis to overturn the legislative perception, which represents the perception of the entire national populace.
Different classes of victims
RS: In a gang rape involving the husband of the victim, the co-accused will face the brunt of the rape law but not the offending husband only because of his relationship with the victim. A married woman's ability to say "no" to sexual communion with her husband when he is infected with a communicable disease or she is herself unwell finds no space in the present framework of rape law. Thus the rape law as it stands at present is completely skewed insofar as married women are concerned.
CHS: An act of non-consensual sex, as committed by a complete stranger, cannot be equated with an act of non-consensual sex by a husband. The extent of outrage felt by the wife, in the two cases, is also distinct and different.… A woman who is waylaid by a stranger, and suffers sexual assault – even if it were to fall short of actual rape – sustains much more physical, emotional and psychological trauma than a wife who has, on one, or even more than one, occasion, to have sex with her husband despite her unwillingness. It would be grossly unrealistic, in my considered opinion, to treat these two situations as even remotely proximate.
Invasion of private space
RS: When an offence of sexual abuse (short of rape) takes place within the confines of a married couple’s private space, the law has unhindered access to the very same space to bring the guilty to justice…The attempt to keep away the law even when a woman is subjected to forced sex by her husband, by demarcating private and public space is to deny her the agency and autonomy that the Constitution confers on her. The distinction between private and public space has no relevance when rights of the women victim are infringed.
CHS: The marital bedroom is inviolable. A legislation that seeks to keep out, from the parameters of such a relationship, any allegation of ‘rape’, in my view, is completely immune to interference.
Urgency to criminalise, or not, marital rape
RS: A married woman's right to bring the offending husband to justice needs to be recognized. This door needs to be unlocked; the rest can follow. As a society, we have remained somnolent for far too long…It would be tragic if a married woman's call for justice is not heard even after 162 years since the enactment of Indian Penal Code. To my mind, self-assured and good men have nothing to fear if this change is sustained.
CHS: The possibility of the husband being regarded as the wife’s rapist, if he has, on one or more occasion, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law. The daughter born of such an act would, if the petitioner’s submissions are to be accepted, 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.
Creation of a new offence
RS: If the marital rape exception is struck down [all that would happen] is that the offending husband would fall within the ambit of the offence.
CHS: The petitioners contend that the impugned exception is outright unconstitutional and deserves to be guillotined. Would we not, by doing so, be creating a new offence? The answer, in my opinion, has necessarily to be in the affirmative.
Read the judgement here.
[The judges’ remarks have been lightly edited]
Weigh in: Should marital rape be recognised as a crime? You may write to her at: namita....@gmail.com
GENDER TRACKER
In 82% of cases of sexual violence against women aged between 18 and 49, the perpetrator was a husband; 13.7% by former husbands.
Source: National Family Health Survey-5
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John Dayal
On 18-May-2022, at 1:18 PM, A C Michael <acmic...@gmail.com> wrote:
Dear All,I have received a following viewpoint - who do not wish to be identified:"The term marital rape itself is problematic. Husbands, with a few exceptions, are unlikely to rape their wives. At best, most may disregard the reluctance of their wives to have sex with them at a point in time when they want it. To call it rape would be to exaggerate the gravity. The opposition to making forced sex in marriage a crime should not be seen as support for it. Men are wary of the act being criminalised because they fear misuse as has happened with the Domestic Violence Act. The mere suggestion of marital rape will damage a man's reputation. The threat of the loss of reputation, livelihood and imprisonment will give an unscrupulous wife extraordinary leverage over her husband. Proving forced sex will be difficult unless there is injury. No marriage will survive an accusation of marital rape. It will be as good as dead. There are other remedies available for the violated wife: divorce on grounds of cruelty or action under the Domestic Violence Act."Meanwhile, I am taking the liberty of sharing a link to the column of Namita Bhandare as you may perhaps like to subscribe: https://www.hindustantimes.com/ht-newsletter/htmindthegap15052022.html?utm_source=newsletter&utm_medium=email&utm_campaign=htmindthegapThanks & regards,ACA C MichaelPresident, Federation of Catholic Associations of Archdiocese of Delhi (Affiliated to All India Catholic Union)National Coordinator - United Christian Forum, India (UCF India)National Coordinator - Minority Affairs of All India Catholic Union (AICU)Vice Chairman - Media & Communication, National Council of YMCAs of IndiaMobile: +91-9818155290UCF Toll-Free Helpline: 1-800-208-4545ABOUT UCF TOLL-FREE HELPLINE NUMBER
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