No, the Chhattisgarh court was not offering up its opinion on marital rape. It was reiterating the law

Nine years after the parliament rejected the Justice Verma committee’s recommendation to criminalise marital rape, Indian courts continue to issue contradictory judgements. Simultaneously, the news media sensationalises the headlines of court orders relating to marital rape. In the process, it misinforms and triggers outrage from readers.

On August 26, one headline dominated social media: “Sexual Intercourse between Husband with a Legally Wedded Wife, Even With Force, Is Not Rape, says Chhattisgarh High Court.” Indians, including members of parliament, took to social media to condemn the judge’s “Neanderthal” thought process. People expressed their disapproval for Justice NK Chandravanshi, who adjudicated the case.

But the court was not offering up its opinion; it was merely reiterating India’s current legal position on forced intercourse between husband and wife, which is a strict exception to rape, and cannot be interpreted otherwise in courts.

History

Few people pointed out that marital rape is a specific exception to rape in section 375 of the Indian Penal Code. The reasoning being that marriage is a contract in which the wife’s consent can be assumed, or is implied.

As society began to respect all women’s agency, the definition of consent expanded. Alongside, the call to criminalise marital rape grew louder.

In 1980, the 42nd Law Commission report recommended that a woman “living separately from her husband” was not subject to the implied consent exception in section 375. Twenty-two years later, after the December 2012 gangrape case, the Justice Verma committee, set up to strengthen and update Indian anti-rape laws, also suggested that marital rape be criminalised. The resulting changes, passed through an ordinance, went through without mention of marital rape.

In 2013, the UN Committee on Elimination of Discrimination Against Women recommended that the Indian government criminalise marital rape. Again, in 2016, on the floor of Rajya Sabha, member of parliament Kanimozhi asked the centre if it planned to strike out the exception in section 375. The government’s response, through Haribhai Parthibhai Chaudhary, then minister of home affairs, was clear: there were no plans to stop the exception. The home ministry cited “the sacred institution of marriage”, poverty, illiteracy and social customs to defend the government's decision.

To date, India remains one of 36 countries that does not recognise marital rape.

Prevalence of marital rape in India, and the media’s role

In 2010, the UN Population Fund reported that two-thirds of Indian women were violently coerced into having sex with their husbands. India’s domestic violence problem was again highlighted during the Covid pandemic, when the National Commission for Women’s data showed that domestic violence complaints doubled after the nationwide lockdown was imposed in India. The last census showed that of Indian women aged between 15 and 49, 81.4 percent were married – approximately 5,30,22,732 women. Out of which, using the UNFPA’s calculations, 3,35,48,488 of these women were raped by their spouses.

According to the Press Council of India’s 2010 norms of journalistic conduct, “headings (must) not to be sensational/provocative and must justify the matter printed under them.”

But the news media sensationalising headlines is not a new phenomenon.

In the last three weeks, newspapers have run headlines such as “Forced Sex In Marriage: cannot call it illegal” and “Sexual intercourse by husband not rape, even if by force’: Chhattisgarh HC”.

These stories went viral on social media.

When celebrities and politicians shared these news stories, and that in turn fed another news cycle of reporting their outrage. This was in large part because of the headlines, which infer that court’s reading of the second exception to rape in section 375 were opinions or court comments.

“I’ve noticed the headlines are extremely misleading,” senior advocate Indira Jaising told this reporter.

Exception II of section 375 of the Indian Penal Code reads: “Sexual intercourse by a man with his own wife, (provided) the wife not being under fifteen years of age, is not rape.”

There is growing clamour to strike the exception as unconstitutional. Supreme Court lawyer Shoba Gupta told this reporter that the exception is an “absurdity” wherein the legislature “closes its eyes to a grave crime leaving one segment of the society at lurch, simply because the perpetrator is a husband.”

Gupta added, “Exception II, till it is deleted by way of a legislative amendment, needs to be strictly interpreted.”

Seasoned journalists point out, however, that the pace of a news cycle at present is incompatible with legal reportage.

“One needs time to think and crystallise in his mind what the judgement said and its spirit in law. That’s no longer available to reporters, and even to editors,” explained Krishnadas Rajagopal, who reports on the Supreme Court for the Hindu. Specifically speaking of headlines, Rajagopal pointed out that headlines were by and large the responsibility of desk editors who often have not covered a court beat, nor have legal training.

“If you don't read the judgement, mainly, you end up being a little lost,” he said. “And you end up with a clueless story and headline.”

In the case of Chhattisgarh High Court, Justice NK Chandravanshi's ruling said: “Exception II of the IPC makes it clear that sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape...therefore, sexual intercourse or any sexual act with her by the applicant No. 1/husband would not constitute an offence of rape, even if it was by force or against her wish.”

Senior lawyer Anand Grover explained that given the legal language in section 375 (exception II) IPC and the many previous judgements that had upheld it, there was no room for a court to interpret the provision. “If there is a challenge to the exception on constitutional grounds such as the right to dignity, only then could a court read it down as it did section 377 or completely strike it off,” he said.

Triggering trauma
Misreported headlines are likely to retraumatise a large number of women, who have or are in an abusive marriage victims to marital rape, pointed out psychotherapist Dr Lubhana Malik. Malik specialises in trauma and couple’s therapy.

“Marital rape and domestic violence can have multifold ramifications on the survivor: physical, emotional and psychological. It would break down the essence of a woman and take away her agency,” Malik explained.

Given the prevalence of marital rape in India, as per the UN Population Fund’s studies, Malik adds that, “headlines like these rob women of their fundamental right to make a choice and only serve to amplify their trauma.”

Accuracy in reporting court decisions is imperative. “It is important when reporting legal news not to sensationalise and misinform people because the law impacts all our lives,” Jaising said.