The Supreme Court’s statements in two recent cases invisibilise sexual violence in the institutions of family and marriage.
Two separate cases on a single day saw the Supreme Court play the patriarch who upholds the institution of marriage and family at all costs. Both hearings, held on March 1, compel us to scrutinise these institutions whose inviolability subsists on the state enforcing the silence of those violated.
In the first case, the bench, headed by Chief Justice of India S A Bobde, asked the accused whether he would marry the teenage girl, a relative, whom he was not only accused of raping when she was a minor but also stalking and threatening. The CJI clarified on March 8 that the bench didn’t order him to “marry”, only asked him if he would. The apex court added, “We do not remember any case of marital rape was before us …We have the highest respect for women.” In the second instance, the SC bench wondered, rhetorically, whether a man, no matter how brutal he is, could be accused of rape in a live-in relationship.
Despite the disclaimer, the statements made by the top court delegitimise the lived experience of rape within the institutions of marriage and family. The bench has also given a generous interpretation of the exception to rape laws in the Indian Penal Code (IPC) Section 375 — which states that sexual intercourse by a man with his wife cannot be termed as rape — by extending the protection to men in live-in relationships. The remarks are premised on the view of rape as stigma and not as violation of bodily autonomy, and of marriage as a restoration of so-called lost honour, never mind that it will reproduce the violation every day.
This view is bolstered by the popular perception of the rapist as the stranger-in-the-dark-alley. Of the 32, 033 rapes registered in 2019 under IPC section 376, as per the National Crime Records Bureau, less than six per cent — 1,868 — were by strangers. In 94 per cent of the cases, the accused were known to the survivors and included family members, friends, neighbours, live-in partners, and separated husbands. There is no data on husbands who are offenders as the law dismisses the very possibility of sexual violence within marriage.
A World Health Organisation report released this week states that intimate partner violence (IPV) is the most prevalent form of violence against women. While six per cent women in the reproductive age (15-49 years) have been sexually assaulted by someone other than an intimate partner, 27 per cent have experienced physical and/or sexual violence by an intimate partner. In India, as per WHO data, the proportion of IPV is 35 per cent.
This is not to argue for expanding the ambit of criminalisation, but to re-examine demands for tougher sentencing and the death penalty. These demands, premised on the myth of stranger-rape prevalence, don’t consider what the survivor wants by way of restitution. Notwithstanding the exception granted to husbands under the rape laws, survivors of marital rape have recourse to justice, monetary relief, and shelter under the expansive civil Domestic Violence Act, which recognises the simultaneity of sexual, physical, and emotional abuse. However, the two recent cases reveal our continued refusal to see the family and intimate relations as the primary sites of gendered violence.
“What may appear to be marital rape (to a wife) may not appear so to others” said the Centre in its September 2017 affidavit before the Supreme Court. When it comes to family honour, appearances are more important. This has implications in how the justice system treats survivors of sexual violence. Forced marriages are a common subterfuge for trafficking vulnerable tribal women from rural India as the traffickers know that a man will never be considered responsible for sexually exploiting his wife. Despite being banned by the SC in 2013, the two-finger test is still used on rape survivors. It is based on the notion that an intact hymen is the mark of an unmarried woman’s honour and rape could only be committed against a woman whose hymen — and by extension honour — is still intact. The presumption is that married women can’t be raped, especially not by their own. Similarly, the focus during rape trials on signs of resistance on the survivor’s body and clothes overlook the fact that, often, survivors simply freeze, especially when the perpetrator is a known person or someone high in the power hierarchy.
Almost 50 years ago, the SC’s dismissal of the Mathura rape case, on the grounds that there were no signs of struggle, overlooked the power differentials in an Adivasi girl’s rape and assault by cops in a police station. The outrage that followed wrote custodial rape into India’s criminal law. Historian Uma Chakravarti has since argued that violence that occurs within the “protective custody” of the institution of family is also a form of custodial violence.
Like the recent open letter to the CJI signed by thousands of activists, there was one addressed to the Supreme Court in the wake of the Mathura case. It read: “Consent involves submission; but the converse is not necessarily true. Nor is absence of resistance necessarily indicative of consent”. When the top court of the country uses the word “seduction” while referring to sexual violence and hesitates to use the term “rape” only because the survivor and the accused lived as husband and wife, consent takes on a more retrograde redefinition — as not merely submission, but servitude.