Recognition of marital rape as an offence is non-negotiable: Jayna Kothari

Our Constitution is a feminist document. While constitutions the world over have been overwhelmingly drafted by men, our Constitution had a small but significant contribution from women. At the time when our Constitution was enacted, not all constitutions had sex-based equality. The Indian Constitution stood out. Not only did it guarantee non-discrimination on the ground of sex under Article 15 (1), but it also protected women’s equal right to work and equal pay under Article 39 (a) and (d) and the right to just conditions of work and maternity relief under Article 42.

This is an opportune moment to do a gender audit and see how far our Constitution has affirmed the equality and equal citizenship status of women. In most ways, it has done rather well. Gender equality has been consistently upheld by the Supreme Court and has been woven quite tightly into our constitutional fabric over the 75 years of its existence.

The early battles that women were fighting were for equal pay for equal work in the 1970s and 80s. In the Mackinnon Mackenzie case, where women stenographers were paid much less than male counterparts, the Supreme Court held that the management was liable to pay the same remuneration to all. Then there were challenges to equality in pay and service conditions on grounds of marriage and pregnancy in the Nergesh Meerza case of air hostesses against Air India. While the Supreme Court did not set aside discriminatory pay and service conditions, it set aside termination conditions based on pregnancy. In the late 70s, C.B. Muthamma, the first woman IFS officer, challenged the Indian Foreign Service Conduct Rules which required a woman officer to obtain permission in writing from the government before her marriage and also to give an undertaking that she could be required to resign at any time if she was not discharging duties because of family responsibilities. The apex court held that it blatantly discriminated against women, as no such similar conditions were required from men, even though it did not set aside those rules.

We have come a long way since then. The 80s and 90s saw multiple challenges to personal law. In the Madhu Kishwar case, the Supreme Court set aside the exclusion of tribal women to property inheritance. In Mary Roy v State of Kerala and Others, the court recognised equal inheritance rights for Christian women. The 90s also saw the court recognising sexual harassment at workplace as a violation of equality. It laid down the Vishaka Guidelines at all workplaces. This was a watershed moment as it recognised for the first time that women have right to equality and dignity at work and that sexual harassment amounts to discrimination.

Since the 2000s, the gender equality battles steadily expanded. The recognition of reproductive rights led to expanded protection of women’s rights to termination of pregnancy based on their right to bodily autonomy. The Supreme Court recognised the right to privacy to include the right to make choices of one’s intimate life, who to marry or partner with, and in several cases of honour crimes the courts interfered and held that women have the right to make their decisions even if it goes against the wishes of their family and society, especially in the case of inter-caste and inter-faith marriages.

The next watershed moment came in the last 10 years, in which the court broadened the interpretation of discrimination on the grounds of ‘sex’ under Article 15 (1) of the Constitution to also include discrimination on the basis of sexual orientation, gender identity and sex stereotypes. This was done in 2014 in the case of NALSA v Union of India, in which the rights of transgender persons to self-determination of their gender identity were upheld. In Navtej Johar and Others v Union of India, discrimination on the ground of sexual orientation was included. The expansion of sex as a ground of discrimination to include gender identity and sexual orientation has been a landmark moment historically, as it decriminalised same-sex conduct under Section 377 of the Indian Penal Code and led to the recognition of legal and constitutional rights of the LGBTQI community.

The big battle, however, that remains is the recognition of women’s equality within marriage. This has been an area within the constitutional framework of equality that our courts have been tiptoeing around. When the question of marriage equality went to the Supreme Court to include same-sex marriages and the right of transgender persons to marry, the Supreme Court backed out and held that even the right to marry was not a fundamental right under the Constitution.

The question of equal marriage rights is crucial, because it is one of the last bastions of patriarchy laying down gender-based roles. In order to dismantle this barrier, it is non-negotiable for marital rape to be recognised as an offence. The marital rape challenge is pending before the Supreme Court. In 2017, the court recognised child marital rape as a criminal offence. But it restrained itself from going into the question of marital rape for adult women.

The recognition of marital rape as a criminal offence has been upheld to ensure women’s equality. We witnessed in shock and disbelief the Gisèle Pelicot case in France where Gisèle boldly waived anonymity and showed the world how her husband drugged and raped her along with several other men during their 50-year marriage in a sleepy village and ensured their convictions. This has led to a serious introspection of rape laws in France and the rest of Europe to redefine consent. We have to understand that marital rape is a reality. The National Family Health Survey shows that according to the data collected until 2021, 82 per cent of married men in India were sexually violent with their wives, as were 13.7 per cent of former husbands, and that 90 per cent of the survivors who faced spousal sexual violence refrained from taking any action or seeking help.

Despite this, our criminal law, including the new Bharatiya Nyaya Sanhita, 2023, still excludes marital rape. This tells us that while we are guaranteed equality and full protection of the laws under our Constitution, we still do not have full equality—that we do not have the right to our own bodies or to decide on when to give consent. Full equality for women under our Constitution has to include equality within marriage and there can be no framework under modern constitutions where marital rape is not outlawed. If our Constitution is to continue being a lodestar for gender equality, as it has been for the last 75 years, we must together ensure that we dismantle this barrier to give women full equality.

Jayna Kothari is Senior Advocate, Supreme Court of India