Rape, Restitution and Reconciliation- Three Rs of Understanding Marriage

*Haripriya Gautam

Introduction

The landmark judgment of Saroj Rani v. Sudarshan Kumar declared Section 9 of the Hindu Marriage Act (HMA)1955 to be constitutionally valid, thereby upholding the judgment of the Delhi High Court in Harvinder Kaur v. Harmander Singh Choudhry and overruling Justice P.A. Choudary’s judgment in T. Sareetha v. T. Venkata Subbaiha, which declared Section 9 of the HMA to be arbitrary and violative of Article 21 of the Constitution.. 

Since then, many scholars have criticized the Court's decision, applauding the radical outlook of T. Sareetha for being progressive and ahead of its time. This body of criticism, however, represents only one end of a broader spectrum of interpretations surrounding Section 9. At one end lies T. Sareetha's position, which reads Section 9 as facilitating forced cohabitation and consummation, thereby rendering it violative of Article 21. At the other end lies an interpretation that reads Section 9's emphasis on restitution and conjugal rights as implicitly encompassing a right to sexual intercourse within marriage, an interpretation that has, in turn, been used to justify the Marital Rape Exception (MRE) under Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023. This article argues that it is this latter interpretation that obscures the real intent of Section 9, and the genuine state interest in reconciliation that the provision is meant to embody. It is only when marital rape is criminalized that section 9 can be realized for its true purpose and not be used to retain a patriarchal law based on societal conceptions of marriage and marital equality.

Understanding Restitution of Conjugal Rights (RCR)

Justice Rohatgi in 1983 dismissed an appeal challenging section 9 of the HMA and went on to elaborate on its object which is to achieve stability in marriages and encourage reconciliation. It was also emphasized that the only sanction invited for non-compliance with an RCR decree is financial, and not specific performance, thereby bolstering the stance that sexual relations cannot be forced upon women through court orders.

Certain conclusions can be inferred from this judgment. For one, sexual intercourse is not “the summum bonum of marriage”(ultimate goal of marriage). It is an expectation but not the entirety of the conjugal right. The court cannot enforce sexual relations between parties. As Ms Karuna Nundy (Advocate) points out “conjugal relations end where bodily integrity begins”. The judiciary in India has recognized the existence of this integrity and independent identity of a woman in the marriage and the same cannot be annulled through an RCR decree. 

Second, there is a public interest in the maintenance of marriages. As Brian H Bix points out, marriage is a public act between two consenting adults who then share a public status. This is especially true when a couple seeks state sanction or state benefit which then turns their marriage into a social concern. Third, it is the government that establishes frameworks to decide in situations of divorce and separation and it has a manifest interest in being able to help its citizen who seeks recovery on a policy. These reasons also explain the court's jurisdiction in deciding cases of such nature.

These two inferences together convey the message that while the state is interested in maintaining the marital status of its citizens, it also recognizes equality within the institution and cannot override a woman’s bodily integrity through an RCR decree. Its plain purpose is to encourage reconciliation and avoid situations where a legally married spouse is left in a lurch, unprotected by the state when she seeks benefits of her marital status. However, this very purpose can jeopardize a married woman’s rights if it is distorted to justify marital rape.

The Misleading Justification of MRE

The Counsel representing the Men Welfare Trust in the Khusboo Saifi v. UOI case presented various arguments in defense of exception 2 to section 63 of the Bharatiya Nyaya Sanhita 2023 that protects husbands who rape their wives from prosecution.

Among the many cited reasons, marital harmony and natural conjugality in marriage took the forefront. Additionally, consent given out of ‘spousal intimacy’ despite the unwillingness of the wife was presented as one of the reasons for not criminalizing marital rape. 167th report on the Criminal Law (Amendment) Bill 2012 was quoted in support to establish that “if marital rape was brought under the law, the entire family system would fail”. In fact, the case of Vidhya Viswanathan v. Kartik Balakrishnan, 2014, was cited to establish that denial of sexual intercourse amounts to mental cruelty.

These arguments are strong and compelling; however, accepting them would result in section 9 being used as a bait to institutionalize marital violence and Justice P.A. Choudary’s concern regarding it would come true. Reconciliation, a necessary state interest, would then effectively conceal a patriarchal law and leave a married woman with limited options when raped by her husband. Professor Jill Elaine Hasdayexplains how nineteenth-century feminists challenged the voluntariness of a wife’s consent even when her husband had forced himself on her. They articulated that a wife could only give free consent when she had both, the legal right to refuse and the practical alternatives to submission.

As explained above, Indian courts have done well to recognize the integrity and independent identity of a woman in the marriage however, when it comes to practical alternatives, only the divorce laws have been slightly modified. These too have been greatly insufficient. For example, the law continues to shield a husband from criminal liability for non-consensual intercourse with his wife moreover, as Professor Hasday explains it, divorce grounds based on cruelty require the victim to show extraordinary brutality on the part of the defaulting spouse, thereby leaving out cases of stand-alone marital rape where consent was not free. In India, in the G.V.N. Kameswara Rao v. G. Jabilli case of 2002, the Supreme Court held that cruelty must be assessed not from a solitary incident but from an overall pattern of conduct so intolerable that living together becomes impossible. A single, or even occasional, instance of non-consensual intercourse is unlikely to meet this threshold absent sustained brutality. This is especially true in light of the fact that marital rape is not recognized as an offence in India at all, and that courts have, conversely, held a wife's refusal to have intercourse to itself amount to cruelty. This asymmetry leaves a woman seeking divorce on the ground of marital rape alone with little realistic recourse.

The second compelling argument of marital reconciliation is not only strong in the sense that it warns the legislature against the effect of criminalizing marital rape on the institution of its interest but also vehemently advocates for the view that MRE accommodates shared concerns of both men and women alike. As Professor Hasday puts it, this argument asserts that a wife’s interests are “always and wholly” served in a marital union wherein a husband cannot be prosecuted for raping her.

However, there is nothing in the impugned section of MRE to show that this ‘mutual interest’, is served in its real sense. For this, it is important to understand the meaning of reconciliation. E J Griew in his writing on divorce law notes how earlier, cruelty and adultery were seen as breaches of marital contract. The law treated the condonation of these breaches as a waiver of a legal remedy rather than a restoration of personal relationship. He underscores the irrelevance of emotional accord in such condonation as per law. However, Denning L.J. in Mackrell v. Mackrell[i] explained reconciliation to mean the restoration of mutual trust and confidence. Even if previous devotion does not exist, the settlement between parties should be such so as to no longer embitter their daily lives.

Following from these two interpretations, while MRE has the effect of compelling the wife to waive off a remedy available to other women, it takes no account of the quality of the relationship or the real restoration of trust and confidence between the parties. Therefore, the ‘mutual interest’ argument may fall out since MRE may in fact fail to effect any real reconciliation between spouses.

Conclusion

Section 9 of the HMA must be read in harmony with a woman’s bodily integrity, a principle the courts have themselves affirmed. Restitution of conjugal rights, within its legal purview, does not and cannot compel a woman into sexual relations with her husband; the decree’s only sanction remains financial, never specific performance. Yet this harmonious construction of Section 9 remains incomplete so long as Exception 2 to Section 63 of the BNS continues to shield husbands from prosecution for raping their wives. A true reconciliation of restitution with equality is possible only when this exception is struck down as unconstitutional.

There are, however, incremental signs of judicial recognition that marital rape constitutes cruelty within a marriage. In X v. X, decided on 30-07-2021, the Kerala High Court recognized marital rape as a ground for divorce on the basis of cruelty. This finding relied on the wife's testimony that her husband had subjected her to forceful and abusive sex even during her pregnancy and while she was sick and bedridden, forced her into acts of sexual perversion and unnatural intercourse against her will, and did not spare her even on the day his own mother died.

While the judgment is a welcome departure, the underlying facts reveal the problem rather than resolve it. Only conduct of this extraordinary, almost unrelenting brutality was sufficient to meet the threshold of cruelty. This sets an impossibly high bar. A woman subjected to a single, or even repeated, non-consensual sexual act by her husband, without such compounding violence, is left with no real recourse either under the criminal law, owing to the MRE, or under matrimonial law, owing to the stringent cruelty standard. The very demand for “extraordinary” brutality becomes a second barrier layered atop the first, ensuring that only the most severely victimized women can even approach the courts, while the rest are pushed back into the “consent” that MRE presumes of them. While Indian courts have not laid down a precise criterion for what qualifies as sufficiently “severe” victimization, the closest judicial guidance comes from the case of Samar Ghosh v. Jaya Ghosh, where the Supreme Court held that the conduct complained of, and the resultant danger or apprehension, must be “very grave, substantial and weighty.” Only women who are able to establish such grave, weighty, and substantial danger will find relief. For victims of marital rape, this bar is rendered nearly insurmountable by its continued non-criminalization and by the broader social inattention that has kept the issue from even being recognized as a problem in India.

It is this two-fold failure that calls for reform. First, marital rape should be recognized as an independent matrimonial ground in itself, without requiring it to be subsumed under or elevated to the standard of cruelty. Second, interim civil remedies should be made more easily accessible to women during the pendency of matrimonial proceedings, so that divorce is not the only exit from an unsafe marriage. Third, judicial sensitization on the realities of marital sexual violence would help ensure that future benches do not inadvertently recreate the same high threshold that X v. X tends to embody. Together, these measures would ensure that a woman's access to justice does not hinge on the sheer scale of her suffering.

Justice Rohatgi was not wrong, and neither were Justice P.A. Chaudhary's concerns unfounded; what continues to evade the true purpose of reconciliation is society's hesitation to call marital rape by its name. Until that hesitation is overcome, in law, and not merely in judicial sentiment, restitution will remain incomplete, and reconciliation, illusory.

*Haripriya Gautam is a penultimate-year B.A. LL.B. (Hons.) student at Hidayatullah National Law University, Raipur.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.