"Breaking the Silence: Understanding Marital Rape and Masculinity in Judicial Rulings"

Shardul Makhare

National Law University, Nagpur

Introduction

Marriage is often viewed as a sacred institution, representing a bond based on mutual respect, love, and partnership. However, hidden behind this ideal is the serious and often ignored issue of marital rape. This breach of consent within marriage questions the very sanctity of the institution and exposes deeper societal problems. Marital rape is a complex issue influenced by three main factors: gender roles, power dynamics, and patriarchy. To understand why some men, feel the need to dominate their wives in such an intimate relationship, we must explore these root causes. This article aims to address this critical question through the lens of a specialized field of sociology called masculinity studies.

Masculinity studies argue that the concept of 'man' is not based on biology but is shaped by society. This means that societal norms and cultural expectations influence how men behave and think. Traits like dominance, control, and authority are not natural but are learned and reinforced through socialization.

These socially constructed traits of masculinity affect not only personal relationships but also judicial decisions. The influence of these masculine norms in legal rulings can perpetuate gender inequalities and fail to protect victims of marital rape, and become a barrier in amending the present law. Therefore, this article addresses the need of change, not just in the law, but also in promoting positive masculinity.

Historical Background Of Marital Rape In India

In traditional Indian society, marriage holds deep cultural and religious importance. Marriage, as a social institution, is governed and shaped by societal norms and values, even though its aspects are deeply intimate.

 Historically, the concept of marital rape was not recognized because marriage was seen as giving permanent consent to sexual relations. In Hindu jurisprudence, the “Doctrine of Coverture” prevailed, stating that a woman became the absolute property of her husband after marriage. This meant that women were expected to fulfil their marital obligations, including sexual intimacy, without question or resistance. This attitude was reinforced by patriarchal norms that emphasized on male authority within the marriage, and made women subordinate to their husband. Therefore, marital rape was historically, and even today is not considered a crime.

Therefore, to get a deeper understanding of marital rape, one must pose a question that: Even though marriage is a social institution shaped by societal norms, why does a man feel the need to dominate his wife in such an intimate relationship?

Social Construction of Masculinity.

Just like marriage, Man is also a social construction. Masculinity means “the socially produced but embodied ways of being male[1]. Its manifestations include manners of speech, behaviour, gestures, social interactions, a division of tasks ‘proper’ to men and women and the overall narrative that positions a man’s superiority over women[2]”. Idea of masculinity can be examined in two ways:

1.      In relation of femininity:

It is usually perceived that, masculinity and femininity are opposites and equal of each other, but in realty this relationship is hierarchical, which means that, the feminine acts as a subordinate, to the masculine, defining the Masculine identity as superior to that of the feminine identity[3].

2.      All those ways which deviate from the ways of being male.

“Masculinity stands in a relationship not just to femininity but also to those ways of being male that are seen to deviate from the ideal”[4]. Therefore, in this sense that masculinity possesses both external (relating to women) as well as an internal (relating to other men) characteristic. Due to this internal characteristic, men behave in a way that the society expects them to, and men who deviate from the ideal are often discriminated. For example, homosexual men.

Therefore, in the light of this, it can be understood that, man is a social construction. Male-ness is a social attribute, which is learnt and taught to boys in society, through various means. Now, in the context of this, the sociological factors leading to Marital rape must be examined.

Gender Roles And Expectations in Marriage

“Gender role in marriage is based on different expectations that individuals, and societies have of individuals based on their sex and based on each society’s values and beliefs. Gender roles are a product of the interactions between individuals and the society, through which an individual is taught what sort of behaviour is believed to be appropriate for what sex.”[5]

These gender roles exist not only in public spaces, but also in private spaces, like that of marriage. These gender roles guide the interaction of men and women. Women are taught to be more submissive and patient, while men are taught to be more dominating and aggressive. These traits are embodied by the society within the genders, leading a man to form a perception that the body of their spouse is the property of the husband, denying the women of their bodily autonomy. The denial of women's sexual autonomy within marriages reinforces the societal expectation that women should conform to traditional gender roles and prioritize the desires and needs of their husbands[6].

It must be noted that, traditional Masculinity norms which emphasize on dominance, control, and sexual aggression, are embedded into the men by the society. Therefore, marital rape becomes a tool for asserting dominance and control over one’s partner. These roles, perpetuate a belief that men are entitled to expert power over their wives. Furthermore, the societal expectation of men to abide by these traditional masculinity norms may create pressure to assert dominance over their partner, leading to marital rape.

Power Dynamics Within Marriage

Marriage in our society is also linked to different levels of power, that male and females have, hence marital rape is deeply rooted in the unequal power dynamics between the two genders[7].

Gendered power is different from other types of power because it tends to stick around, even when we get rid of other privileges based on things like social class or race which gives power to a certain group. For example, one can impose restriction on the privileges based on factors like caste, but it doesn't necessarily change the power that come with being a certain gender in the society[8].  Therefore, there exists a strong relationship between, gender and discrimination based on power. Historically speaking, division of power in the context of masculinity can be seen as follows:

public sphere has been defied as that of men, and private sphere as that of women. Public sphere is a place where rational and educated discussions took place on important matters of social life among the claimants of public sphere, that is men[9]. While private sphere was a space where a man could find relief. The private is represented as soft, emotional, devoid of rational and scientific capacity to think about important matters, and was hence, a place of women.[10] Therefore, masculinity, is different from all other types of social construction, and therefore the power given to men through this social construction is also different. For example, a Dalit man, though discriminated on the basis of caste, is still considered superior than his wife. This shows that, men regardless of differences, still experience a particular kind of power in common over women[11].

Therefore, it is undoubted that, the power given to the men by the society through the notions of masculinity contributes in shaping the concept of “women”, leading to creation of gendered power. Due to this inherent power dynamics within the marriage, women are perceived to be inferior to that of men, leading to instances of marital rape[12].

Patriarchal Structure Of The Society.

It is not disputed that patriarchy and masculinity are linked, but it is important to understand that, both of these concepts are not the same. patriarchy, “is a system of organising social life that is premised on the idea of the superiority of all men to all women[13]” masculinity, on the other hand, is a relationship not only between men and women, but also between men and men. Therefore, “patriarchy is a system, which makes the men superior, while masculinity is the process of producing superior men.[14]” 

Being masculine isn't just about being biologically male; it's a constant process where guys feel the need to prove themselves all the time. This pressure to perform extends to their sexual lives, becoming a big part of how they see themselves as men and where they fit in socially. In this performance, anything that doesn't fit the traditional idea of straight masculinity gets pushed aside, making it seem like there's only one way to be “normal”[15].

Within the context of marital rape, this pressure of fitting into the ideal of masculine can manifest in harmful ways. Men may feel compelled to assert their dominance over their spouses by means of forceful sex to prove their masculinity and asserting their perceived superiority. But it is to be noted that this idea doesn’t just pop up on its own in the minds of men, it's been reinforced time and again, though various means like pop-culture, media, novels and through various social institutions like family, due to the patriarchal social structure that exists in the society.

For example, the Karnataka High court in 2012, said that, “the husband can’t be made to suffer for no fault of his and be deprived of his natural urge to enjoy sexual happiness if the wife is unwilling to share the bed and discharge her duties[16].” This is nothing but reflection of idea of masculinity embedded in the minds of individuals which is reflected in this judgement.

Case Studies: Reflection Of Idea Of Masculinity In The Judicial Decisions.

RIT Foundation v. Union of India[17]

The infamous split verdict arised out of a PIL filed by the RIT foundation, while advocating the women’s right, by criminalizing marital rape, under section 375 of the Indian Penal Code. The case was presented before a division bench, leading to a split verdict.

Justice C. H. Shankar observed that, “there is a difference between marriage and any other relation. Sex between strangers, and between married couple cannot be equated, since the relationship of husband and wife has an important incidence of ‘legitimate expectation of sex’ and that has to be observed.”[18] 

The judgement, delivered by Justice C. H. Shankar, highlights that the idea of masculinity along with the Ideals of patriarchy and gender roles which are so deeply embedded by the society in the minds of individuals, that it even reflects upon the legal system of the country.

The honourable judge, neglected the fact that, the basic definition of rape, involves infringement of the bodily autonomy of the women, irrespective of the relationship that the women have with the perpetrator. The idea of legitimate expectation of sex by the husband, is nothing but a manifestation of the above discussed ideas, in which the socially constructed man, feels entitled over the body of his wife, leading to marital rape. Also due to these ideals set by the society, it is neglected the situation of marital rape is an “imposed conception” upon the women which may lead to serious physical and psychological after effects.  

Queen Empress v. Haree Mythee[19]

In this case, a 53-year-old man was married, to a 11-year-old girl. One the night of marriage, the husband forcefully conduced penetrative sex, which severely injured the vagina of the girl, leading to her death. In this case, the Court, held that, “when there is a marital relationship between two persons, and the wife is not under the age of fifteen, then the husband cannot be held liable for rape.”

Even in this case, marital rape was not declared to be immoral or unconstitutional, rather only the age of wife, on who such sexual acts can be conducted was increased. This shows how deeply ingrained these ideas are, that even after such heinous incident, the men continue to believe that they have a right to dominate, and the same is reflected on the judicial decisions.

Conclusion: Addressing Marital Rape

Masculinity studies show that being a man is shaped by society, with traits like dominance and control being learned and reinforced. This social construction is evident in our legal system through laws and court decisions that often maintain gender inequalities and fail to protect victims of marital rape. Therefore, we need, not only legal reforms to address marital rape, but also educational efforts and awareness to promote positive masculinity, consent, and healthy relationships.

Families and schools play a key role in guiding and shaping individuals. It's crucial to address and challenge traditional masculine norms within these institutions to promote a cultural shift that respects women's autonomy and promotes healthy relationships.

BIBLIOGRAPHY 

Books:

· Sanjay Shrivastava, “Masculinity, Consumerism and The Post-National Indian City” CAMBRIDGE UNIVERSITY PRESS 2023.

· Sanjay Shrivastava, “Masculinity and its Role in Gender-Based Violence in Public Spaces” OXFORD UNIVERSITY PRESS, 2023.

Articles:

·Freeman, Michael D. A. “But If You Can’t Rape Your Wife, Who[m] Can You Rape?’: The Marital Rape Exemption Re-Examined.” FAMILY LAW QUARTERLY, vol. 15, no. 1, 1981, pp. 1–29.

·Geetanjali Gangoli, “Controlling Women’s Sexuality: Rape Law in India” Nicole Westmarland (ed.) BRISTOL UNIVERSITY PRESS, 1st ed. 2011.

·Jain Naman, “Criminalization of Marital Rape in India: Socio-Legal Analysis” NYAAYSHASTRA LAW REVIEW, vol. 3, no. 1, 2022, pp. 1-20.

· Nickel, Hildegard M and Michel Vale. “Sex-Role Socialization in Relationships as a Function of the Division of Labor: A Sociological Explanation for the Reproduction of Gender Differences,” INTERNATIONAL JOURNAL OF SOCIOLOGY, vol. 18, no. 3, 1988, pp. 48–58.

· Rumney, Philip N. S. “When Rape Isn’t Rape: Court of Appeal Sentencing Practice in Cases of Marital and Relationship Rape.” OXFORD JOURNAL OF LEGAL STUDIES, vol. 19, no. 2, 1999, pp. 43–69.

·Sanjay Shrivastava, “Masculinity Studies and Feminism: Othering the Self.” ECONOMIC AND POLITICAL WEEKLY, vol. 50, no. 20, 2015, pp. 33–36.

·Sanya Agarwal, "Marital Rape in India and Its Impact." JUS CORPUS LAW JOURNAL, vol. 3, no. 2, December 2022, pp. 747-760.

·Swati Singh, “Rape v. Patriarchy: A Sociological Analysis” SOCIAL AND CULTURAL DEVELOPMENT IN INDIA, vol. 1, no. 2, 2021, pp. 190-193.

Newsletters

·Vijay K. Tyagi, “Analysing the Delhi High Court’s Approach Towards Presumption of Constitutionality in Marital Rape Case” SCC TIMES, Jan 6 2023.

·Ishita Roy, “Marital Rape Statistics in India: The Alarming Reality According to Recent NFHS Data” WOMENS WEB: CRIME AND LAW, March 21 2023.

[1] Sanjay Shrivastava, “Masculinity, Consumerism and The Post-National Indian City” CAMBRIDGE UNIVERSITY PRESS 2023.

[2] Ibid.

[3]Ibid.

[4] Id.

[5] Nickel, Hildegard M and Michel Vale. “Sex-Role Socialization in Relationships as a Function of the Division of Labor: A Sociological Explanation for the Reproduction of Gender Differences,” INTERNATIONAL JOURNAL OF SOCIOLOGY, vol. 18, no. 3, 1988, pp. 48–58.

[6] Freeman, Michael D. A. “But If You Can’t Rape Your Wife, Who[m] Can You Rape?’: The Marital Rape Exemption Re-Examined.” FAMILY LAW QUARTERLY, vol. 15, no. 1, 1981, pp. 1–29.

[7] Rumney, Philip N. S. “When Rape Isn’t Rape: Court of Appeal Sentencing Practice in Cases of Marital and Relationship Rape.” OXFORD JOURNAL OF LEGAL STUDIES, vol. 19, no. 2, 1999, pp. 43–69.

[8] Sanjay Shrivastava, “Masculinity Studies and Feminism: Othering the Self.” ECONOMIC AND POLITICAL WEEKLY, vol. 50, no. 20, 2015, pp. 33–36.

[9]Sanjay Shrivastava, “Masculinity, Consumerism And The Post-National Indian City” CAMBRIDGE UNIVERSITY PRESS 2022.

[10] Ibid.

[11] Sanjay Shrivastava, “Masculinity Studies and Feminism: Othering the Self.” ECONOMIC AND POLITICAL WEEKLY, vol. 50, no. 20, 2015, pp. 33–36.

[12] Ibid.

[13] Id.

[14] Id.

[15] Id.

[16] Ishita Roy, “Marital Rape Statistics in India: The Alarming Reality According to Recent NFHS Data” WOMENS WEB: CRIME AND LAW, March 21 2023.

[17]RIT Foundation v. Union of India 2022 SCC OnLine Del 1404.

[18] RIT Foundation v. Union of India 2022 SCC OnLine Del 1404.

[19] Queen Empress v Haree Mythee (1891) ILR 18 Cal 49.