Justice, misuse and proof: Why the legal debate on marital rape is wrongly set up

Burden of proof cannot hold us back from criminalizing rape.

Voices Gender violence

A couple of years ago, Chennai-based activist and lawyer Sudha Ramalingam was approached by a battered woman. She had recently left her husband’s home to live with her mother, but there was no judicial separation. Days after she left, her husband walked into her maternal home, entered her room, and forced himself on her. Her family was in the house, but did not stop him. Reason: they were, after all, married.

“The family even told me that they thought it was OK, and that it might lead to the couple getting back together,” recounts Sudha, “and there are so many such cases that I get. Often even the girl’s family allows it.”

Sudha Ramalingam is lawyer who has represented both wives and husbands in nasty divorces or domestic violence cases and is not entirely in favour of a law criminalizing marital rape. But even she agrees that in such cases the husband-rapist goes scot-free due to the social contract.

Recently, ministers of NDA received much flak for making statements justifying not having a marital rape law. But beyond their arguments against a marital rape law based on ideas of culture, family and customs which are aimed to placate the far-right sections of the ruling dispensation, some seemingly genuine issues with the enactment of the law are being pointed out.

Three main points are being raised: One, wouldn’t the law be put to rampant misuse by vengeful estranged wives? Two, how can one prove in a court of law that the intercourse between the wife and husband was indeed forced? And three, why do we need a law against marital rape when the Domestic Violence Act includes sexual abuse?

The last one is easy to answer: the DV Act is a civil law, and only provides for protection and monetary compensation to the victim. It does not address the question of criminal violence, and does not provide justice to a victim of rape.

Besides, this also raises the question, if marital rape can lead to civil prosecution, why not criminal?

The first two points meanwhile stem mainly from a culture of prejudice and discrimination against women. However, it is important to address them for legal clarity.

The vengeful wife

That a law against marital rape would be misused is based on an overwhelming feeling that vengeful wives are waiting for an opportunity to send their husbands to jail.

Sudha Ramalingam says that in a country where perjury and contempt of court are not taken seriously, false allegations fly thick and fast, “We have to bear that in mind too.”

“Yes, but the truth is that the number of false cases is highly exaggerated. No one is denying that there might be some false cases. And that should also be a reason to work towards better implementation, so that not only do we reduce the number of false cases, but more importantly, we do not fail the real victims, and let the real rapists walk free," says Ragamalika Karthikeyan, Programme Officer, Prajanya Trust.

Marital rape itself is a reality we cannot ignore. According to the UN Population Fund, two-thirds of married women in India in the 15-49 age-group have been beaten, raped or forced to provide sex by their husbands. According to the National Family Health Survey-III, one in 10 women in India have faced spousal sexual violence, including marital rape, at least once in their lifetime, Ragamalika points out. “The exaggerated possibility of misuse cannot take away from the real crime and injustice faced by lakhs of married women in the country."

Understanding marriage

The arguments against a law criminalizing marital rape often betray the lack of understanding of what a marriage is. Legally, or otherwise, a marriage is not a licence for a man to have sex with his wife. According to a general definition, marriage is a state of being united to a person of the opposite sex as husband or a wife in a consensual and contractual relationship recognised by law. Marriage is a social contract in which a wife maintains complete autonomy over her body.

The question which then arises is this: how is marital rape different from any other rape?

By definition, rape is the lack of consent in a sexual act. The marital rape exception in Indian law traces its history to the 1600s, when a woman was considered the property of her husband. The then Chief Justice of England, Sir Mathew Hale said, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”

While married men are exempt from prosecution, even a man judicially separated from his wife is given a lower punishment. In fact, in a country where child marriage has been apparently abolished, a man who rapes a girl between the ages of 12 and 15 will get a lower punishment if he was ‘married’ to her.

What about evidence?

Coming back to the question of evidence, and the second argument of burden of proof.

Firstly, that something is difficult to prove cannot be an argument to ignore a crime.

“Even in cases of rape by someone who knew the girl, it is difficult to prove rape. Proving rape is always based on circumstantial evidence,” points out Dr Prasanna Gettu, CEO of International Foundation for Crime Prevention and Victim Care. While in popular imagination, ‘rape’ means a stranger assaulting a woman, in 96% of the registered cases in India, the rapist is known to the victim.

Dr Gettu further points out that marital rape cases will present a different scenario, unlike other rape cases which could be single incidents. “Marital rape will not happen in isolation, there will be a history of violence and physical abuse, and will fit into the larger picture of domestic violence. We have to look at it from that perspective,” she says. Dr Gettu also points as to how even workplace sexual harassment is often difficult to prove, but we have still have laws against it.

Arguments against criminalising marital rape focus on forensic evidence, or the ‘lack of’ it. How can you prove that the act was not-consensual using DNA samples as evidence? The answer is in the judgment of Supreme Court in Sheik Zakir vs State of Bihar, case, where it ruled that the absence of a medical record would not be of much consequence if the other evidence on record is believable.

Even so, Akila RS, a lawyer based in Chennai, points out the relevance of medical evidence in cases of marital rape too, “A history of physical violence, results of a rape-kit and medical examination of the wife, witness testimony and possible admission of the husband in electronic communications could be ample evidence to prove his guilt,” she says. Timely medical examination can differentiate between consensual sex and forced sex.

“Yes, there is some difficulty in the criminal jurisprudence here, but we have to develop it. And at least, in cases where there is enough proof for proving marital rape, the law will help punish the husbands,” says Akila. A case in point being the woman who reached out to Sudha Ramalingam few years ago.

"Let’s get one thing clear: those of us arguing for criminalising marital rape are not asking for a ‘special provision’ for married women. What we are asking for is the special status accorded to some rapists to be removed. We cannot have 'good rape' and 'bad rape', there cannot be gradations based on the relationship between the victim and the perpetrator,” says Ragamalika.