Rama Srinivasan writes: Powerful men have explicitly laid out their view that sex against the wishes of their wives is not a crime, legal or moral, while others are in the mood for a marriage strike against what they perceive as a men’s rights issue.
Litigation on sexual crimes draws from social and caste-based perceptions on what constitutes rape. These are, in turn, based on who is presumed to have access to women’s bodies.. (Illustration: C R Sasikumar)
In response to arguments made in favour of criminalising marital rape, a former top law enforcement officer has speculated that this petition, which he termed anti-civilisation, could bring about the destruction of family and children. Due to his past role as the ex-CBI director, Nageswara Rao must be taken seriously when he appears to support sexual acts that may not be outlawed but are, at least, morally questionable. One of the two judges hearing the case in Delhi High Court has admitted to being sceptical about the legal ramifications of criminalising marital rape but neither appear to question the moral imperatives. Rao represents one extreme view of this complicated relationship.
Another, more prevalent, impulse is the fear of false accusations. The source of this anxiety is linked to both rape cases and dowry harassment ones. This piece will address them individually. Only a fraction of sexual crimes is reported, especially because those that make it to courts appear to put the complainant on trial. This was again evident in recent high-profile cases including that of Tarun Tejpal’s and Franco Mulakkal. Even where the judges have been able to ascertain that an explicit “no” was expressed — as in the case of Mahmood Farooqui — the court has ruled for acquittal.
Litigation on sexual crimes draws from social and caste-based perceptions on what constitutes rape. These are, in turn, based on who is presumed to have access to women’s bodies. These norms are not laid out in explicit terms but courts, as well as social groups, skirt around them. When BJP’s Kuldeep Sengar was accused of rape in a case where the complainant’s father and, later on, her lawyer have both died under suspicious circumstances, his constituents joined together for a demonstration in solidarity — with the accused. Their simple contention was that their representative was innocent.
Similarly, despite a documented history of predatory behaviour, several journalists who were accused of sexual harassment at workplace have denied any wrongdoing. Their colleagues, friends and families, at times, lend support to these refutations. In many ways, the denial has less to do with accusations themselves but, rather, societal perceptions of right and wrong. Men from privileged backgrounds are assumed to have access to bodies of women from all social backgrounds but access of marginalised men, even in cases of courtships and love affairs, is rigorously policed. This discrepancy may be exposed as hypocrisy but it suggests something more deep-seated.
Fears of false accusations are based on an uneasy relationship between law and morality, where sexual acts criminalised under the criminal code and those explicitly permitted under law are still in the zone of moral ambiguity. Criminalisation of acts that are deemed socially acceptable in certain circles brings with it the feeling of persecution by those automatically perceived as bad faith actors.
The only cases where a conversation on false accusations does not skirt around unspoken social norms are those of courtships gone wrong, where women retrospectively file complaints of sexual assaults. A study conducted by Rukmini S in 2013 revealed that 40 per cent of such complaints were cases of consensual sex “criminalised by parents.” Men in such courtships are assumed to be guilty whether or not a conviction is possible.
The other source of anxiety here is the history of dowry harassment cases. My ethnographic interviews with lawyers in north India have often dwelled on the “problem” of false dowry cases. Gentle probing on this assumption revealed that the perception of fraud stems from the seemingly cynical timing — often after a marriage has irrevocably broken down — and presumed motivations of the complainant rather than the merits of the cases themselves. Dowry demands and exchanges are still prevalent in rural and urban areas, criminalised by law but, again, in the zone of moral ambiguity. They are taken seriously, if at all, when accompanied by cases of serious violence and harm.
Complaints of extortion and harassment by police officers aside, the claim of dowry harassment — most likely an authentic one — has become a necessary evil in some ways. Women seeking divorce have found that the inclusion of dowry harassment charges is often vital for the case since judges recommend mediation as a rule. The treatment of women within marriages is deemed an internal matter and to be negotiated within family settings. The fear of persecution via false cases stems from the lack of alignment between law and morality.
The petition against marital rape has been an opportunity for the Indian mainstream to witness the unravelling of some of these unspoken norms on sexual crimes and marital relations. Powerful men such as Rao have explicitly laid out their view that sex against the wishes of their wives is not a crime, legal or moral, while others are in the mood for a marriage strike against what they perceive as a men’s rights issue.
Criminalisation of marital rape opens up another frontier for a battle between law, which is ideally based on dignity and respect for all, and morality in narrower circles, based on unequal power relations within families.
In my December 2020 piece for The Indian Express, I had asked: Who is afraid of Indian women? The article had pointed out that for people who view patriarchy — in reality, a social construct — as a natural order, the fear that the edifice will crumble at any moment is very real. Lack of control over women’s sexuality presents itself as a crisis that can lead to an unravelling of hierarchies that patriarchal agents are heavily invested in. This case against marital rape is perceived as a civilisational threat by some because it requires such agents to explicitly state these unspoken norms and end the situation of moral ambiguity.