Panel discussion on marital rape PP Haresh Jagtiani, Rtn. Tara Deshpande, Rtn. Natasha Treasurywala, Rtn Suhail Nathani with Rtn. Satyan Israni
Satyan Israni: The discussion today is on the broader issue of marital rape, and we will not be restricting to the confines of the decision of the Delhi HC which in any case is now taken up by the Hon’ble Supreme Court. Needless to state, the views of the Panelists are their personal views and shall not be taken to be the view of the Rotary Club of Bombay. Lots of thoughts have been exchanged on why we are discussing this issue as it is more of a western concept. How is it relevant to the Indian context? I just want to throw a few facts, a few numbers before we open the Q&A with the panel members. Recently, we had the National Family Health Survey which was conducted for years 2020-’21. Certain startling numbers:
- Nearly 20% of married women are not able to say ‘no’ to their husbands if they do not want to engage in sexual intercourse with them. That is one in five women.
- 19% of men believe that they have the right to get angry and reprimand their wives if they refuse to have sex.
- A large number of men believe that they have the right to get angry with their wives, refuse financial support, use force to have sex and have sex with another woman if the wife refuses to have sex.
This is part of the official survey. So, having said that, it is a great time to have this discussion because there is a raging debate all over the country and all over the world. And, just an eye-opener, since 2019, more than 150 countries have criminalised marital rape, and India is not one of them.
Question to PP Haresh Jagtiani: What exactly is Section 375 of the IPC and what is the marital rape exception that is carved out of the law?
PP Haresh Jagtiani: Before I get into the legal definition of rape and what the contours of the exception are, I must say about the judgement delivered by the Delhi High Court. One, there is a considerable amount of misconception of that judgement. I rate these two treatises though they differ from each other on a Constitutional issue, but I rate them as one of the most intellectual discourses by the individual judges. It is just fantastic. It is a judgement that runs into 400 pages. Each of the judges have taken 200 pages to explain themselves and I am not surprised; when you talk about women, you need so many words to get your message across. But, be that as it may.
What do these judgements say? It appears to be ironical; they are not opposed to each other. None of the judgements advocate that a man/ husband can thrust himself and demand sexual intercourse with his wife merely by the virtue of the status of being a married man. None of them advocate that. The difference is this, that the judge who says that I am not going to strike down the exception only says that the legislature thought it fit in its wisdom not to treat him as a rapist, not to treat him as a criminal. But that is the prerogative of the state. It is a policy.
After all who is a criminal? You are a criminal if under the provisions of the IPC. So, the state says we will not treat as a rapist at par with a stranger who comes at a knife point or without the consent of a woman outrages her modesty and does an act of penetration. That is a person whom we call a rapist, not a husband. This is the reason we will not call him a rapist but that doesn’t mean that he can get away with his act with impunity. That doesn’t mean that the wife has no recourse to the other provisions of the law, namely, she can sue him for divorce if he forces himself on her, she can go to a court under the Domestic Violence Act, she can take actions against him under Section 498A of the IPC and also have him punished.
So, it is not that the person who forces himself and demands a sexual intercourse is a person who will go scot-free. So, on this, both the judges are in ad idem; they are in agreement except the first one goes a little further and says no, we must call him a rapist because not to call him a rapist is to create a class of people who do the same act as a stranger, but they don’t get a label of being rapist. So, this is that according to me the judge says is abhorrent, that anathema because in one sense it diminishes the status of a woman and it just makes her to be a person who belongs to the husband to do what he likes with. So, that is it and these are two opposite points of view but none of them abjure or accept the fact that you can demand sexual intercourse from her even when she doesn’t consent. So, this is something which is worth keeping in mind.
Broadly, it is a question of values; on the one hand the judge says is that look, a woman’s dignity is in her being able to say no, you can’t violate that, you can’t impose yourself on her. The other value is that ultimately this is an institution of marriage, and it is recognised since time immemorial as being sacrosanct. It has stood its test of time, it keeps the family together, also the legitimacy of the child born in wedlock is established, her right of inheritance is established, it serves a tremendous public interest and a social purpose. So, it is a question of values. You say that the rights of the women are inviolable, her dignity can’t be diminished, even slightly. On the other hand, you ignore the institution of marriage. So, it is just the question of these values.
What is rape? It is defined under IPC Section 375 as anyone who forces himself or has sexual intercourse, a penile intercourse or inserting an object, if that person does it without the consent of the woman, then he is deemed to commit rape and then what consent means is also defined. But there is an exception to that, exception number two, which says that – sexual intercourse by a man with his own wife, the wife not being under 18 years of age, is not rape. Now, mind you, if she is under 18, the husband is guilty of rape and can be convicted as a rapist. Initially, when this legislation came about, the age was nine years because child marriages were well-known in India, then it was raised to 10, then 15 and, by a recent judgement of the Supreme Court in 2017, they said we will raise it to 18. So, therefore, that has to be honoured. The funny part is, it states sexual intercourse by a man with his own wife. This was drafted by an English man and every word used in the legislation has to have a meaning. Now what you mean by own wife? It can’t be a borrowed wife, so, this is one of the rare exceptions where there is a superfluous use of expression. So, he is a person who is not deemed to be rapist as an exception. And this doctrine has flowed in from an English doctrine which was pronounced by Lord Matthew Hale in 1736 where he said it is a doctrine of coverture. A peculiar doctrine, after marriage the wife’s rights are subsumed into the husband so much so that if she had a legal action she couldn’t bring it at her own right, she had to do it through her husband and he said that look, in a marriage there can never be, because her consent is deemed to have been given by virtue of the marriage, so she forfeits the right to say no and so, a man can never commit rape on his wife. That was the doctrine, and this was bizarre and held the fuel for several years, maybe a hundred years. Then there was a case which is worth listening to, there was a person who was afflicted with gonorrhoea, it is an STD and he did not disclose this to his wife. He had sexual intercourse with her and she contracted the same. So, she sued him that had I known that he is carrier of this disease, I would have not consented to intercourse with him and she carried this matter before 13 Judges of the English court. Nine of the judges said that she had no right to refuse because of Lord Hale’s dictum and it doesn’t matter that if in the process he is a carrier of the disease and gives it to her. So, he is not guilty of even that act of passing on a sexual disease to her. This, the four dissenting judges said, is barbaric, we have to draw the line somewhere and you can’t say merely by the virtue of marriage. Then the law evolved in England and, of course, when they first evolved it, they used the words as ‘who ever has unlawful sex with his wife…’ Again, the word unlawful was misleading. That means, could there be a situation where sexual intercourse was lawful and that is when the word ‘unlawful’ was dropped. Unfortunately, in India we have seemed to ignore this history and retained the second exception and said that he is not a rapist. Even though it was Lord Macaulay who framed Section 377 and recently the Supreme Court struck it down. We are a little late to react to the whole evolution. This is exactly what these two judgements say and believe me if you have the time and the patience have a look at some of the passages.
Question for Tara Deshpande – taking from that regarding coverture, we have a patriarchal mindset in India, the Pati Parmeshwar mindset and that the woman is sub-servient to the husband. What is your take on that?
Tara Deshpande: I spell pati as p-u-t-t-y, anyways. I am glad we are having this debate. Haresh mentioned that all these colonial laws find their origin in English Common Law. Now, particularly where marital rape is concerned, English Common Law has been influenced by a conservative interpretation of Christianity. In, specifically speaking, the book of Corinthians which is the Second Testament, Paul the apostle 54-53 CE, where it states that a man may not deny his wife and a wife may not deny the man in a marriage. Now the assumption here is that the man and the woman are very equal. Sounds very idealistic and romantic but the truth is not so many years ago men and women were equal, and they are not so now. This is based on the fact that pre-marital sex in conservative Christianity was forbidden and discouraged. So, the assumption was that the only way you can have sex was in the marriage and it is therefore lawful to do so. But, of course, we now know at least that that doesn’t hold anymore. I don’t know if it was held at that time either.
We live in a world where pre-marital is fine and extra marital is sometimes extra fine. The problem is really what is in between. I think the assumption on which the decriminalising marital rape exists is really are archaic today. In the US 14-15% of women according to a survey have experienced marital rape. That is a very high figure and I think 83% had experienced marital rape and some form of physical violence in the National Family Health survey. So, these are really staggering figures. You also mentioned that one of the judges said that the outrage a woman would experience if she is raped by her husband vs raped by a stranger should be less. That is something I am not able to understand because to me the husband takes a set of vows like you do when you get married, to love cherish and honour. So, if your husband who is sleeping in the bed next to you with children next door on whom you depend for his protection, financial support rapes you, not once but many times, wouldn’t that be worse than some stranger that you don’t know at all? Because everything becomes open to attack when it is the person you know. The question of how our system and values are different from the western is very true. A lot of western early laws where by all states in the US had accepted marital rape as being a criminal offense by 1991. If you take the Hindu Marriage Act, we have a sapta-padi which is seven circles around the fire, saat-phere. I don’t know how many of have you read the shlokas that are said when we get married. If you read them, there is absolutely no mention that the woman is the man’s property, there is no mention that she has to consent all the time, in fact there is very little reference to sex really in any of those vows. Maybe that is also a problem but as far a Hindu marriage goes there is no obligation for her to say yes, in my opinion. So, if we are changing the laws in this country based on our values and culture then why are we following a western set of laws which were influenced by different sets of values and norms, why are we not drawing inspiration from our own values and if you read the sapta padi, there are more obligations for the man than there are for woman. The sixth phera, the woman asks the husband to actually cooperate in household chores. I bet you guys didn’t know that. So, yes, that is my take on it.
Question to Natasha Treasurywalla – going ahead with what Tara said, do you think religion, culture, faith, economic conditions, up-bringing have any role to play in the sexual behaviour of a married couple?
Natasha Treasurywalla: I think, absolutely, they do, considering women are so conditioned to think that once they get married, like you get married and then you have to do what your husband tells you do. You are conditioned to believe that you have to be subservient to your husband. I think a lot of women are conditioned to think that. I think that plays a lot within a marriage but the thing is when I was researching for this panel discussion, I am calling it discussion because I don’t think it is a debate, I mean why would it be a debate, it is a discussion. So, I found that so many people say that this is against our India values and Indian culture, it is against marriage as an institution, once you are married it is between two people. But I don’t think any religion says that it is okay to force a woman to have sex, or to rape her whether you are married or not. So, I can’t believe we are about to argue and say that as per Indian values, religion says nothing on it and therefore it is allowed. That makes absolutely no sense.
I found a column from Ann Landers, Chicago Tribune. An American man wrote to her, ‘Everyday, we have to do things we don’t really want to do but must. I mow the yard and fix the car; I don’t enjoy it but it is part of my responsibility to keep the household running. So, why isn’t sex considered part of marriage maintenance? She doesn’t want sex, too bad. I don’t want to get up Saturday morning and clean the storm drains, but I do anyway. I would like to see your answer in paper.’
Reply – ‘A husband who compares making love to his wife with cleaning the storm drains is not a great candidate for romantic coupling. I can understand why your wife is not very responsive.’
But you see the mindset even today. This is the mindset of an average male.
Suhail Nathani – The nice part of speaking fourth is you get the chance to disagree with everyone who spoke before. So, I disagree with Natasha, this is a debate, it is not a forgone conclusion. I disagree with Haresh that this is not a British Law. In India, rape laws were amended in 2013 after the Nirbhaya case and we have defined rape like no other country in the world. We have put the insertion of any object; it has nothing to do with any bodily part. If you are familiar with Tarun Tejpal’s case, in the elevator in Goa he was accused of inserting a digit in that woman and he has suffered jail not on the merits of the case because the moment you come in the definition of rape under Indian law other than for a husband who sleeps with an under-age wife, it is a non-bailable offence. Please understand what we are talking here. We are not talking about value. I fully support the value but consent is required absolutely needs to be obtained, clearly, unequivocally. We have discussed common law. We have discussed British Law, we have discussed Vedas and we have discussed Ann Landers. Leave everything apart, morally, the woman needs to consent whether she is your wife or not. No argument on that. Do you need to criminalise it? if the answer is yes, do you need to criminalise it in the way that the IPC criminalises it because it brings the government into your bedroom, it brings the police in your bedroom. It will make a miserable married life and a miserable bedroom. Husbands and wives have disagreements, if there is a case brought it can have tremendous ramifications the way the law is defined in India. When this 2013 amendment was happening, I was reading it and I was aghast. I was a student in Cambridge and this subject of Rule of Law and I kept on calling my friends who were in Parliament saying please do not amend the law, you are creating an incentive for a rapist to kill the child. Because if it is against a child, it is death. If you are a rapist, think about it objectively, don’t think about it legally, morally. If you are in a situation where a child is raped, if she survives, she tells on you, you have the risk of getting death penalty. If you kill her that death is reduced. That is the absurdity of the law. Please understand, it is not a debate about what is happening in other parts of the world, it is not about woman rights. I agree to the concept of consent but in India, it is singularly the most dangerous thing that you can do by criminalising marital rape because it will lead to the police coming into your bedroom. Let me also put a few other statistics in front of you. 94% of rapes in India are committed by people you know – today that doesn’t include your husband. Tomorrow, you amend the laws that include your husband, I shudder to think what will happen. 32,000 rapes, 88 rapes a day in India, statistically. Now police which has enforcement of 30% in this, how much of harassment in the marital house, what the consequences of that. Haresh, I agree with him, there is a protection for a woman if the husband behaves in a particular manner, doesn’t do what he is supposed to do with his wife. You have other legislations to protect but criminalising rape is not the answer to my mind in the Indian context. Two thoughts I would like you all to leave with, one, there is a provision in the Hindu Marriage Act which talks about restoration of conjugal rights. It is the duty of the husband and wife to have conjugal rights that includes sexual intercourse. If a wife decides not to have sexual intercourse with her husband, the court can order restoration of conjugal rights. What is that? That is no consent, what does that make the court? Please think about all these issues and one bug bear that I have with recent judgement and I will raise it because Haresh praised the judgement. There was an English author who wrote to his father saying I am writing this very long letter because I didn’t have time to write a short letter. 200 pages by each judge. Please read it, it is a cut and paste from various text books. It doesn’t move the needle on the law. There was a case many years ago in an area of commercial law which is shared with my son when he was a student in law school. It was 400-pages, I gave it to my son and said please read this for the only reason to learn how not to write the judgment. You can find everything, yes, no, maybe and the conclusion is completely unrelated. If you see the privacy judgement of the Supreme Court, 9 judges and 5 wrote the same judgement and each 4 wrote other judgments all concurring. It is a cut paste job. I think it is an opportunity for the judges to show their knowledge but has nothing to do and I am not even talking about the reality of India. I am just saying that the rape law is so faulty in India, I have a problem when you start criminalising it.
I will read the definition of rape which says, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person, there are seven descriptions.
- Against her will.
- Without her consent.
- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
- With or without her consent, when she is under eighteen years of age.
- When she is unable to communicate consent.
And one section really worries me, punishment of rape, different punishments when you are a police officer, public servant, member of the armed forces, whether you are management of jail, management hospitals, relative, guardian commits rape during communal violence, commits rape on a pregnant woman, woman incapable of saying no to him, or being in a position of dominance over a woman. Every woman will come and say that my husband is in the dominant position. This is what you will face. And one question, criminalising the Nirbhaya laws in India, when we added the death penalty, have the number of cases gone up or down? Therein lies the disconnect between criminalising and action and the amendment of the law. There is no co-relationship. The number of rape cases have gone up, the reporting may have gone up. The fact is the number of cases has gone up. So, to conclude, consent yes! Absolutely no arguing that. In the Indian context, criminalising like this will only lead to misery because the law is draconian. It is uncertain, it is badly drafted and the conviction rate is 30%. So, husbands will end up spending time in jail waiting for bail because it is a non-bailable offense. So, while you think of these issues, please keep this in mind.
Taking off from what Suhail said, Haresh, do you think domestic violence laws in India are enough to encompass marital rape and do we need this marital exception to be struck down?
I don’t know about encompassing marital rape but it certainly gives a course of action to a woman who has been violated against her will and without her consent by her husband. But let me deal with a couple of aspects that Suhail raised, one is that please don’t confuse the problem of proof and evidence with the punishment a crime deserves. This is where we go wrong. You know that right from start the investigation takes place and it is my case that most of the cases before they go to trial are compromised at the stage of investigation. Because the police, according to me, in some sections of the law is a mafia. I am not mincing words, I know that a cheque bouncing instance, for example you go to police for commission, he converts that into a case of cheating and he takes action. We know that they are collecting agents and that is how a law is abused. So, one you can compromise the case at investigation stage and you get the desired result. Two, the lower judiciary can also be compromised. I am saying this with a sense of responsibility because we have seen it happening all over the place. So, therefore if there are perversions in the law and the manner in which it is enforced, that can attach to the rationale of the legislation which is brought into account. Now let me give you an instance in which the judge recommends striking down of marital rape, he gave an instance like this because a husband can’t commit rape is what the exception says. Now let us suppose the husband is involved with others in a gang rape on his wife. All the other conspirators can be found guilty of rape, but the husband is not. He will not be treated as a rapist because the law says he is exempted by the virtue of him being married to her. How do you answer this? This is a very compelling argument which has been accepted by the judge and he has done it. If he has taken 200 pages to do that and Suhail would have helped him do in 2-pages, that’s his bad luck. But I have thoroughly enjoyed reading it because it is logic by logic, every aspect of the argument, mind you, it was brought in public interest and private interest. They had some very eminent counsels who expressed the point of view. Now every single point of view had a bearing. Suhail is right, you are ultimately dealing with a scenario that takes places within the confines of a bedroom. How do you discover it? That is the problem. That is the problem of law. You have an inadequate number of judges to start with in terms of population, the courts are completely over crowded, there is no political will in this country. I have a reason for that, every government of the day deliberately keeps the judiciary on a tight rope. Why? So, the executive fiat runs much longer and wider. Our population to judge ratio is dismal. Compare it with any other country and we are supposed to be governed by the rule of law. So, these are issues of proof, of administration, of justice. Please don’t confuse this with the values that are involved in the whole thing. For that there is no answer. I am not saying that the answer is to criminalise it, I am saying that the answer is to understand what the issues are and not to merely say that look it is an aspect that consent must be assumed on behalf of the wife and therefore he just got free. So, there are many considerations that go into this and we are now talking purely at a theoretic level right now to discover where is the wire media? What do you do? Also, there is another category of rapist. A husband can’t be a guilty of rape based on exception 2 but a husband who has been separated from his wife, is not exempted. He can still be guilty of rape except in this case the punishment is a little lesser than that of the others. So, there are three categories of people, husband, separated husband and a stranger. Now take the case of live-in relationship. You will have the same problem. How does it prove that there is no consent? They are sharing the same bedroom; same problem will arise and she says that we had intercourse without the consent. How do you prove it? Under Section 114 A there is a presumption of law that if a woman says that the intercourse was without my consent, the law shall presume that it was without the consent but the consent has to established by the accuses, by the person who perpetrates that act. Same problem will apply in the live-in relationship. These are very vexed issues and I think 400-pages is a little too little to explain all this.
Tara, you have stayed all over the world, any difference you see in the way married people behave abroad and in India?
India is a more conservative society obviously, and the expectation of the women here are far greater but a lot of these cases are case by case because whichever culture you live in it depends on the couple. And coming back to that culture, Suhail talked about how the police will be in your bedroom, well, incest also happens in close confines of bedrooms, are you telling me that when a father rapes his daughter it is not a rape? It is also happening inside a home. If a woman accuses a man of rape, the marriage is really over, isn’t it? I don’t understand why we are having difficulties in describing a violent act where a woman said no and we are offering different punishments to different people. Whether a man is living in the same house with a woman or separated from her, I feel if he is the husband the punishment should be more because he has made promises and she actually had trust and faith in him. She actually lives in the same house with him, she has no defences against a man who is in such close proximity to her. I think the punishment to a husband for rape should be greater than for a stranger.
Well said. Natasha, any word of advice for all the husbands out there?
We don’t have enough time for advice. But anyways, I want to say, rape is rape. If the police want to come in your bedroom, then so be it. How does it matter? And Haresh and Suhail, as you said, women can go under other sections, but why? I want to go under the 375 Sections, I don’t want to go under sexual abuse or domestic violence. So, why not?
Suhail – she made the case I wanted to make; we don’t want the law to be abused. And the second point here on restoration of conjugal rights. The question here is that no body is here to look about the consent of the wife, everybody talks that the court can compel the restoration of conjugal rights whether it is in law, whether it is in canon law, whether it is in Veda law, there is a presumption that there will be sexual relations between husband and wife. Also, most cases in India are brought for rape under false pretences. What is that? I’ll give you an English case I read when I was a student. A swimming instructor was teaching a girl and he told her that if you have an intercourse with me, it will be like I am pumping air in your… and you will learn swimming quicker. Absurd, of course, rape. In India, I love you so much, I am going to marry you but later on we decide to not marry for whatever reason; he raped me under false pretences. He said he will marry me. Most of the cases in India are that way. Now you can talk about evidence, what does the enforcement or process have to do with it? That is the key thing. Where there is insertion of the object, there is no bodily fluid, it becomes your word vs mine. When there is a body part inserted, typically there is a bodily fluid, it becomes easier to enforce and that is what law needs to have. Certainty and clarity. Just having a wide canvas will not further any cause, it is not shaping rule of law and that is not helping anyone.
Haresh – on the question of conjugal rights I wanted to add, it is of course in the marital relationship both parties have a conjugal right to demand that they have sex with each other. But it is not to be confused with conjugal expectations. That is an aspect of expectation by the married couple that they expect that they will have sex with each other. But that exception must stop when the consent of the wife ends. And therefore, his expectation cannot go to the extent of violating her physical form. And it’s merely because you have a decree for conjugal rights a judge can’t direct that you have sex. You can’t, that has been outlawed by the Supreme Court.
Sometimes it is easy to prove that it is force and rape, but a woman can even say after months that oh he raped me. Then it is obviously like getting back at him. So, how do you establish that it is not vengeful action by the wife rather than a real rape.
[Tara] Rape is difficult to prove even when it is not by your husband. There are so many cases which you see in films and documentaries, there is no physical evidence and then it turns out there was a serial rapist on the run. So, you can’t say that the act can be decriminalised or criminalised just because you found the evidence to do so it is a tough situation.
[Natasha] And you can’t have a different yard stick for rape and different stick for sexual abuse and domestic violence because those also have to be proved.
