Marital Rape Dialogue with Sneha Mukherjee, Human Rights Law Network -

The Dialogue Box organised a dialogue with Sneha Mukherjee on 7th August 2022. Mukherjee is a Human Rights advocate and activist practising in the Supreme Court of India working with the Human Rights Law Network, New Delhi. Over the last 8 years, she has represented women in cases relating to gender based violence, sexual and reproductive health rights. Mukherjee was one of the advocates representing a survivor of marital rape seeking criminalization of Marital Rape in the much talked about litigation before the Delhi High Court.

During the dialogue Ms. Mukherjee was asked questions relating to Marital Rape. Below we have provided a summarised transcript of the insightful event.

What is Marital Rape and how do you look at it within the Indian society?

Simply put, marital rape is any form of sexual violence, sexual assault rape by the husband on his wife. This is the simplest definition on understanding of marital rape. Now how you look at it from the Indian perspective or from where the Indian society looks at it, is a complex question, because there are really two views to it. One which says that marital rape does not exist and then there is the alternate view– that rape is rape and the relationship between the perpetrator and the victim has absolutely nothing to do with the act itself. Lack of consent is rape. How the society in India looks at marital rape as an issue and that whole discussion around whether it should be criminalized or it should not be criminalized is basically, I think, a dialogue and an argument between these two sort of set of groups and these two set of principles.

There is a saying that Marital Rape is not a real thing. What is your take about it?

I am of the view that the relationship between the perpetrator and the victim has absolutely no connection to the crime or the act and therefore to me marital rape is just rape. It is perpetrated by the husband on their wife, but it is very important to understand what the perspectives are, which is why I will probably discuss a little why this whole conversation around the marital rape not being rape, or why it should not be criminalized and the layers and conversations around it, because there are multiple. It is not just whether if it should be criminalized or should not be, but it is also that, if it were to be criminalized would it be an offense of the same gravity as rape or would it be a less lesser offense. And then would the punishment for marital rape be just as much as rape or should it be less so. These are the conversations that are very important. In the 1800s there was some Matthew Hale who said that once a woman is married to a man she becomes his property. So, which means that there is perpetual consent, once you have consented to marriage, the consent of the woman does not matter anymore. The moment she has consented to marriage and she has married the man, he does not require her consent so she becomes a chattel she’s not a person with equal rights she’s a chattel. That was the term that is used in the principle. There is very little scope and understanding for consent within sexual relationships between the husband and wife, because consent is presumed. We constantly try to rebut because, irrespective of whether you’re married or not married or you are in a living relationship or in any form, I think consent becomes the basis for sex right. Consent is a very complicated issue when it comes to marriage. It is complicated because in a marriage, it is very easy to coerce consent. For example, I’ll give you a simple example if the husband today says that if you don’t have sex with me, I will walk out of this marriage. There are so many situations, this is just one example, and you would find a lot of women feeling compelled to give in, because if the husband walks out she will lose a home she might not find support from her family, she will also lose economic security that the marriage provides. If the consent is conditional, it is not consent at all, but within a marriage, there is a lot of debate around the fact that even in conditions like this if the woman has actually consented. I think understanding coercion is very important to understand that any relationship has its own power structure. Any relationship has its own I think hierarchy and not criminalizing marital rape actually enforces the fact that there needs to be a power structure. Within marriage and the institution of marriage isn’t it, and that is something that we constantly try to argue against in today’s day and age, where we are constantly talking about gender equality. How is it that we we as a constitution and be as a democracy, fail to provide that safety and that equality to women within marriages, because somehow we have these big old debates about how there has to be gender equality and how we are talking about everything else but the moment we talk about marriages and we talk about this institution and the sanctity and the morality this…high moral place, I think the institution holds suddenly all of the conversation around the quality goes down the drain. All of this conversation around consent goes down the drain, and that is something that happened in courts also You will see courts that say that you know Marital Rape is not a thing. We have seen in the last two years, various district and high courts passing orders. wherein they have actually identified recognize Marital Rape as rape punished, the husband and we have seen courts not saying that marital rape is not a thing and have dismissed the complaint, so you know everything, I think, because of this one exception that the law has, I think it has affected a woman’s power to actually go and proceed against their husband, and that is something that is held against women, because they are not being able to do so.

Watch the full interview here

When rape outrages emotions of people, then what hinders to even recognize marital rape? Also as pointed by you there is a difference because of the patriarchy which sits in that society so do you think that it is justified? What are your views regarding that?

I’ll tell you something that happened in the court because I think a lot of you who are attending today, probably have heard about the litigation that went on in Delhi High Court recently earlier this year. It was like three month long ago proceeding, where the division bench of a court heard whether this exception needs to be read down or not. So one of the judges, I think this is something that he has pointed out in his judgement. It was a split judgement, so there was one judge who strongly believed that the exception should go and there was another judge who believed that exception should stay. So the judge who believed that the exception should stay, the arguments he writes in his judgment, that, (and this is something that I feel is fundamentally flawed and I don’t think there is any logic to this) there is a lot of difference between a woman being raped by a stranger and the agony, a woman feels when raped by a stranger and the agony that a woman feels when any sexual abuse is perpetrated by the husband. Now, I believe that, as long as we believe that in India, first of all I think factually in India 70% or 80% rapes are not committed by strangers. If you look at the statistics, they are not committed by strangers, they’re committed by people the victim is known to. People with whom she has a fiduciary relationship. It can be a family member, a friend, a neighbour, a person who she knows. So this whole concept about stranger rape and marital rape, I think that is flawed, secondly, to believe that somehow the degree of violence of women faces when rape is perpetrated by the husband is somehow much lower, because that is…the thing that was argued that you know, a woman…cannot…At all feel that way you know, feel that level of agony if she’s raped by a husband, because you know she has had sex with her husband before. And they live in an intimate familial setup. So how can you possibly feel violated to that extent, as it would be in the case where the rape is perpetrated by a stranger, even if I had to argue a stranger or somebody, with whom she does not share an intimate relationship. I think this is something very fundamental that goes to the argument of why you know…women, why is it so difficult to actually go ahead and file the complaints, because as long as we as a society believe that a woman cannot a woman cannot possibly feel. The violence when it comes from the husband, we will keep denying her access to justice isn’t it? In most cases, because I have represented more than one victims of marital rape I have seen women who have come right out within a week within 10 days within a month and gone to the police, and I have seen women who have stayed in those marriages for years and then come out and sought help. So there are several reasons for it. And one of the most important reasons is that, when a woman tries to reach out to somebody she trusts with this information that she’s facing violence, more often than not she’s either disbelieved or she’s discouraged from going to the police and filing a complaint. You know because somehow the owner always boils down to the woman. To prove that it was in fact violence, because our society believes that within a marital setup there can be no violence in the sense that a lot of things are actually okayed. Right? Physical abuse is okay. Verbal abuse is Okay. Sexual abuse, does not really exist because how can it. So as long as we as a society believe that we cannot possibly provide or allow women the space to actually go ahead, because it does in fact take a lot of courage and strength to stand up against your own family. You know within a marital status set up to go on complaint, because in. I think, nine out of ten cases, you know that you will be alone, and it will be a very, very long struggle. So we understand why it is very, very difficult for women to actually go ahead and make those complaints and it is also reflected in the legislation. Even today, after all of these debates, these debates litigation this specific set of litigation and Delhi High Court went on for six to seven years. The government had the stand that they are considering criminalising seven years back. They have the same position, seven years later, when the final arguments were heard. They refused to argue…on what their position was on this issue during the arguments. They said, we are considering and they’re still considering. As long as the legislature, you know, keeps something so urgent, how are we to have faith that there will be a system created to safeguard and allow women, not just to safeguard just to allow the avenue to actually go and proceed and file complaints and take this situation in there.

So we also talk about the domestic violence act too, and how does the protection of women from the domestic violence act provide civil remedies to the victims of medical leave and do you think that any amendments of this act can be helpful to the victims?

It is true that the domestic violence act recognizes, sexual abuse, but it only has civil remedies. It will provide you compensation, it will provide you residents, it will provide you maintenance, but I believe that if a woman wants to seek civil remedies completely fine. But I think in cases of physical and sexual violence, I think, woman should have the right to also proceed criminally. And that is an avenue that we are denying them by specifically keeping an exception that does not allow women to proceed. Because it is a very, very serious offence and the nature of violence is very severe and then the woman should have the right to proceed criminally if she wishes to. So I think that is an avenue because within the DV Act, the scope is very, very limited in terms of remedy. Hence, if somebody…if a victim wishes to proceed only within the civil law remedies available she has always has the dv act but trust me when I say this, a lot of women would proceed criminally if they had the power to a lot of women, try to and they failed because there is no law, firstly, and we have a system that I think strategically demoralises women from actually proceeding and going ahead.

Mental Health dialogue Box — Marital Rape, a form of patriarchal abuse

It is simple our system is not simple filing the complaint. Getting the MLC done the registration of FIR the entire medical procedure, and then the entire litigation. It’s a very, very long and tedious journey. And it’s also a very lonely one for women, because they don’t find the kind of support that they should not just from within their families, but also from the stakeholders, the government stakeholders, the law enforcement. So I think that is a very important role. So I think there should be systems in place and there should be. The possibility for women to proceed criminally in these cases, given the nature of offence.

Coming to the last question that those who have faced marital rape what can be done to overcome those challenges, what are the steps that can be taken both in terms of legal avenues, as well as you know, any other health lines or mental health, maybe, looking at the mental health, so what can be done in those situations?

I think, as far as I think legal remedies are concerned, there’s very little one can do right now…honestly. Very little that can effectively work that does effectively work because there’s a lot of to and fro of bile there is no law…while there is a law that specifically decriminalizing marital rape, it is very difficult, almost impossible for women to actually navigate the system and get a complaint registered there they can be heard. It is very time consuming and tedious because if you go to the police station, the police will say, Madam, this is not… This is something that is, this is not an offence or we would not file a complaint, even if they did their investigation will not be done properly. So I think…The first step is to really advocate for a law that provides women the support that she requires legally to proceed. There are several health lines, so I work out of Delhi and Delhi has three four headlines, which allow women to complain to seek shelter and I think most states have some helpline run by the women’s Commission or the local police force wherein they can reach out in case of an SOS situation. We are still sort of navigating the rehabilitation part with us as a country, we do not have a very strong…rehabilitation infrastructure. We don’t.That is also something that I think is actually being argued in different courts across the country that the country requires a very, very strong infrastructure to support rehabilitation for women who have suffered violence in different forms. The number of shelter homes are very limited. I think the given budget for the shelter homes are so limited that they are in a very, very bad state, there are no services and. The instances of abuse from within these homes are very, very rampant and there are so many cases that we’re dealing with where women are scared to go and live in the shelter homes because of the abuse and management issues and administrative issues because really like human resource finance infrastructure, everything is lacking. So that is a whole new conversation on its own, honestly. But at this point, I think what I, as a lawyer, tell all other lawyers that every time somebody reaches out to you, you do what it needs what they need to get that FIR registered and you get get the procedure done immediately, and rightly, because as long as we as lawyers push for these cases and we provide the support to these women, I think we can reach somewhere because very often we fail to provide I think the legal support that they require. Either it is because we look at the law in a very, very strict way that you know, there is, there is a provision that says that it cannot be a criminal offence so, then there is no way but…no! There are different ways of looking at the law and just because It is still an offense right it used to look at marital rape as an offense we are constantly struggling with the fact that it has been decriminalized with that exception. But that should not stop us from going to the police, from going to the Court of the police is not registering an FIR. There are avenues, there are procedures built in the law. We just have to find it or not, in ourselves to go and actually pursue those avenues and those you know the powers under the law. So that is something that I always ask any pros. I do a lot of pro bono work and I asked all of my colleagues and friends that as long as we have those alternate remedies under the law, we need to do something and use those to go as far as we can, because I know that in most cases, these cases, end up going to the High Court. Some have even gone to the Supreme Court, and that is how we have seen progressive judgments come from the High Court and Supreme Court, so we can’t really give up now.

Also Read: Menstruation the dirty word: Can talking about it within households improve the condition?

Important resources and helpline for Marital Rape victims

Human Rights Law Network

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