Just because a couple is married, consent for sex can’t be presumed

FOR THE RECORD

05.09.2021

Just because a couple is married, consent for sex can’t be presumed

Marital rape is a contentious issue that has divided not just society but also the Indian judiciary. In 1979, Dr Upendra Baxi, professor of law at the University of Warwick, was one of four people who wrote an open letter to the Chief Justice of India on the Mathura rape case. They succeeded in getting the rape laws recast barring the clause on marital rape. In an interview to Himanshi Dhawan, Baxi explains why it’s such a divisive issue

The Chhattisgarh High Court recently said that any sexual act by a husband with his wife could not be rape even if it was by force. What is your reaction?

The Chhattisgarh HC judge discharged the accused on rape charges because there was no offence in the law book. We do not want police to book anyone on an offence that does not exist. It is a question of civil liberties. But the court could have expressed itself better on the subject. It is high time that offence of marital rape is enacted. But as long as there is no such law, the judge cannot be faulted.

What about the contradictions in court observations? The Kerala HC said that this is a form of violence and a ground for divorce but stopped short of giving direction to the government.

The Supreme Court has fiddled with this idea and said all sexual intercourse below 18 years, married or not, is rape. So, courts have the power to do what the legislature is not doing. It has done so in the case of legalising homosexuality or decriminalising adultery.

In 2000, Law Commission chairman Justice B P Jeevan Reddy said in half a line, “Time is not ripe to amending Indian Penal Code and making marital rape an offence,” but in 2013 the Justice Verma Committee recommended that marital rape be made part of the rape law amendments. So, justices tend to vary among themselves, as does legislature, and media. It is a highly divisive issue. But it does not mean that non-consensual sexual relations can be forced by one spouse on the other.

Some cite the example of the anti-dowry law and the domestic violence law to argue that it will be misused by women to settle scores in a marital dispute.

Misuse is happening because violated people are being empowered for the first time in decades. The SC has repeatedly ruled that misuse or use of power is not ground for denial of power. Every law whether for public security or economic offences has been misused. We see police misusing power, arresting people, filing 2,000 pages of a chargesheet that is often worth nothing.

We must tighten the criminal justice system against wrongful use of power. Harassment is a fear that is expressed but compare it to the oppression that is going on. How do you correct that?

Also, we should look at the percentage of misuse instead of merely labelling it. There have been instances like the Atrocities Act and 498A where some courts have declared misuse without any empirical evidence.

An often-used argument is that marriage implies consent forever. How do you counter that view?

The Constitution empowers both men and women with the fundamental right to human dignity and justice. Consent to sexual aggression within a marriage cannot be presumed. In a sound marriage, both sides should live in dignity and equality.

We have seen how judicial intervention has brought changes in laws for women such as the Vishakha guidelines that were a precursor to the workplace harassment law. And yet courts seem to shy away in this case?

You can’t blame only one side. There are three agencies of social change in a society — religion, education and law. Law can only take us so far. Religion and education must play their part. It is easy to put pressure on courts but that doesn’t change social behaviour. Courts can say what is a good society, but they cannot by themselves deliver a good society.

On marital rape, there is a tremendous difference of opinion which I feel can be resolved through public and Parliamentary debate. The ideal solution would be for Parliament to enact the law, and cast responsibility on various state governments, civil society and business houses to create a fund for destitute women. So, if a woman needs financial help to live in dignity when she files charges for marital rape, she has a support system. Bringing criminal law is the first step but associated steps are also important. We have not paid sufficient attention to the renovation of the architecture of the legal system. Criminal law reform is only symbolic if the rest is not in place.

You and three other professors wrote an open letter in 1979 asking for amendments to the rape law. How effective was that?

The letter sparked discussions and ultimately all our suggestions in recasting of the rape law were adopted barring the one on marital rape. Marital rape needs more intense discussion. Give me your best arguments and I will give you mine, and then let the superior argument prevail. We have to find a middle way. We need to keep at it.