Opinion Chhattisgarh High Court’s verdict on marital rape shows why a female gaze is necessary to interpret the law
An interpretation of the law cannot be completely divorced from gender morality and the situational context of a woman’s suffering
Over the years, courts have sporadically recognised the legal injustice and have protected married women’s rights through provisions on “cruelty” and “unnatural sex”. (Representational Photo) The discourse around marital rape in India has again gained momentum in light of a recent judgment by the Chhattisgarh High Court. On February 10, the HC acquitted a man convicted of causing his wife’s death through rape and sexual assault. The court relied on the exception under Section 375 of the IPC (1860) that states that any sexual act by a man with his wife does not constitute rape. Interestingly, the Court also acquitted the man on the charges of killing his wife, despite a dying declaration linking the wife’s fatal injuries to the sexual assault. Conversely, in 2022, the Karnataka HC had upheld the charges of rape, cruelty, and unnatural sex filed by a woman against her husband — same laws, different interpretations.
When interpreting outmoded, regressive laws, a court is faced with two choices — it can either retain the status quo or it can expand the confines of the law to acknowledge social evolution. As women’s roles and expectations within the marital institution evolve, so do their rights – from being treated as their husband’s property to being recognised as individuals in their own right. Some judgments have recognised this transition. In 2018, one of the grounds for striking down the offence of adultery was that its non-prosecution of women was premised on a paternalistic understanding of marriage, where the woman’s sexual autonomy was controlled by her husband. Amidst all this, the marital rape exception stands as a legal anachronism. It is a relic of the colonial era that strips women of their individuality and autonomy within marriage, and allows men to rape their wives with impunity.
Over the years, courts have sporadically recognised this legal injustice and have protected married women’s rights through provisions on “cruelty” and “unnatural sex”. The decision by the Chhattisgarh HC is particularly shocking because in its interpretation, it extends the marital rape exception to the offence of unnatural sex, holding that if forced vaginal sex by a husband does not constitute rape, then forced unnatural sex could not be criminalised either. It is a deeply parochial interpretation of the law that fails to recognise the progress in women’s rights. It also exposes an urgent need for adopting a “female gaze” when adjudicating on crimes against women. As sentinels of the people’s rights, when the courts, especially the appellate courts, interpret laws, they declare what it ought to be.
Justice R N Manjula of the Madras High Court recently upheld the centrality of a woman’s experience while adjudicating a case of sexual harassment at the workplace. Justice Manjula effectively employed a “female gaze” in legal interpretation, a gaze which brings the differential experience and struggles of womanhood into the interpretation of laws.
Looking at laws from a woman’s perspective averts the unintended impacts that a particular interpretation of a provision/legislation would have on women’s lives. While the prerogative to break the male standard of laws lies with the legislature, courts can employ a female gaze by placing the suffering of the woman at the centre.
One must take into account the differential experiences of the woman during the conviction and sentencing of the accused. In some sensitive cases, the presence of a woman advocate as an amicus curiae would aid the court in effectively employing a female gaze during the trial. An interpretation of law cannot be completely divorced from gender morality and the situational context of a woman’s suffering. Doing so would lead to complete miscarriage of justice.
The writers are with Vidhi Centre for Legal Policy
Share
