What arguments in marital rape case reveal about insecurity of patriarchy

• In response to arguments made in favour of criminalising marital rape, a former top law enforcement officer has speculated that this petition, which he termed anti-civilisation, could bring about the destruction of family and children.
• One of the two judges hearing the case in Delhi High Court has admitted to being sceptical about the legal ramifications of criminalising marital rape but neither appear to question the moral imperatives.

Fear of false accusations

• The source of this anxiety is linked to both rape cases and dowry harassment ones.
• Only a fraction of sexual crimes is reported, especially because those that make it to courts appear to put the complainant on trial.
• This was again evident in recent high-profile cases including that of Tarun Tejpal’s and Franco Mulakkal.
• Even where the judges have been able to ascertain that an explicit “no” was expressed — as in the case of Mahmood Farooqui — the court has ruled for acquittal.
• Litigation on sexual crimes draws from social and caste-based perceptions on what constitutes rape.
• These are, in turn, based on who is presumed to have access to women’s bodies.
• These norms are not laid out in explicit terms but courts as well as social groups skirt around them.
• Fears of false accusations are based on an uneasy relationship between law and morality, where sexual acts criminalised under the criminal code and those explicitly permitted under law are still in the zone of moral ambiguity.
• Criminalisation of acts that are deemed socially acceptable in certain circles brings with it the feeling of persecution by those automatically perceived as bad faith actors.
• The only cases where a conversation on false accusations does not skirt around unspoken social norms are those of courtships gone wrong, where women retrospectively file complaints of sexual assaults.
• A study conducted by Rukmini S in 2013 revealed that 40 per cent of such complaints were cases of consensual sex “criminalised by parents.”
• Men in such courtships are assumed to be guilty whether or not a conviction is possible.

Dowry harassment cases

• The other source of anxiety here is the history of dowry harassment cases.
• Dowry demands and exchanges are still prevalent in rural and urban areas, criminalised by law but, again, in the zone of moral ambiguity.
• They are taken seriously, if at all, when accompanied by cases of serious violence and harm.
• Complaints of extortion and harassment by police officers aside, the claim of dowry harassment — most likely an authentic one — has become a necessary evil in some ways.
• Women seeking divorce have found that the inclusion of dowry harassment charges is often vital for the case since judges recommend mediation as a rule.
• The treatment of women within marriages is deemed an internal matter and to be negotiated within family settings.
• The fear of persecution via false cases stems from the lack of alignment between law and morality.

Conclusion

• The petition against marital rape has been an opportunity for the Indian mainstream to witness the unravelling of some of these unspoken norms on sexual crimes and marital relations.
• Criminalisation of marital rape opens up another frontier for a battle between law, which is ideally based on dignity and respect for all, and morality in narrower circles, based on unequal power relations within families.