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This recent Gujarat HC order on marital rape is welcome, although it remains to be seen whether Parliament will follow suit and take action.
Much has been said about Marital Rape: different schools of thought have locked horns on the debate, some demanding criminalization, while some have countered the demand, presenting concerns and fears to justify their stand. The Ministry of Women and Child Development has made its stand clear when Maneka Gandhi suggested that criminalizing marital rape would effectively go against ‘Indian culture’.
The Supreme Court ruled recently that sexual intercourse with a minor (below 18 years) wife is rape. In the same case, it had declared that it would not deliberate on whether marital rape should be criminalized or not, since the parliament had already decided upon it.
Recently, the Gujarat High Court followed suit, albeit in an interim order on marital rape, with Justice JB Pardiwalla declaring that “Marital rape is a disgraceful offence that has scarred the trust and confidence in the institution of marriage.”
Interestingly, in the case in which this was pronounced, the key question before the court is whether a woman can initiate prosecution against her husband, for “unnatural sex,” which is punishable under the ambit of Section 377 of the Indian Penal Code. The court was called upon to deliberate on whether a husband compelling his wife to indulge in oral sex amounts to an offence under Section 377, and offence of cruelty under Section 498-A of the IPC. The court, by itself, sought to examine whether forcing a wife by the husband, to indulge in oral sex would amount to rape under Section 375 of the IPC.
In response to this, the single judge bench comprising Justice JB Pardiwala, reflected that marital rape exists in India. Using the decision as an opportunity, the judge offered an insightful explanation of marital rape in itself:
“Marital rape refers to “unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent.” It is a non-consensual act of violent perversion by a husband against the wife where she is abused physically and sexually.”
The following three kinds of marital rape, generally prevalent in the society: Battering rape: In this type of marital rape, women experience both physical and sexual violence in the relationship in many ways. Some instances are those where the wife is battered during the sexual violence, or the rape may follow a physical violent episode where the husband wants to make up and coerces his wife to have sex against her will. In most cases, the victims fall under this stated category.
Force only rape: In this type of marital rape, husbands use only that amount of force, as it is necessary to coerce their wives. In such cases, battering may not be a characteristic and women who refuse sexual intercourse usually face such assaults.
Obsessive rape: In obsessive rape, assaults involve brutal torture and/or perverse sexual acts and are most commonly violent in form. This type has also been labelled as sadistic rape.”
While it is definitely true that this is one judge’s decision in an interim order– i.e., that this judgment is not the final word in the case, it is also true that this is the first time on record that a judge has deliberated upon the issue, and offered an explanatory assessment of the offense.
For the first time, the judiciary has not only acknowledged that marital rape is a crime, but has also gone forth to break down the crime into multiple variants in which it is perpetrated. This not only offers up clarity of thought underlying the request to criminalize marital rape, but also answers the systemic question of the spectrum of instances that fall under marital rape.
Per recent reporting, 94% of rapes in India are committed by someone the victim knows and women are 40 times more likely to be assaulted by their husbands than by strangers.
It’s hard to tell whether what Justice JB Pardiwala offers up is a popular opinion among the upper echelons of the judiciary, enough to find support among others, or if it might be dismissed and cast aside on account of legislative will to not criminalize the offense.