Does a wife's conjugal duty protect marital rape?

The barrage of outrage against the Home Ministry's categorical refusal to criminalise marital rape appears to be centred around a Bollywoodised concept of sexual violence in marriage. Just parsing through the flood of comments would show that people are setting all the store on Durga (Raveena Tandon) in Kalpana Lajmi's Daman, who was violently violated by Sanjay (Sayaji Shinde), or Susanna (Priyanka Chopra) in Saat Khoon Maaf, brutalised every night by Musaafir (Irrfan Khan). 

Pause for a moment and think, is it rape- sexual intercourse without a woman's consent or against her will- only when the man, even her legally wedded husband, pounces upon her and has his way despite her protestations? Would it not be rape if a wife is compelled to have sex with her husband - it could be a single instance, or something which happens day after day (think Rakhee Gulzar in Paroma) even if she is loathe to do so? If the definition according to Section 375 of the Indian Penal Code is to be taken in its literal sense, it would also count as rape. 

Unfortunately, it isn't, thanks to a provision in the Hindu Marriage Act (and its concomitant sections in the marriage laws of other religious communities) which have been upheld, time and again, by the highest court in the land.

This benighted provision is Section 19 of the Hindu Marriage Act, which gives either spouse or party in a marriage the legal right to "restitution of conjugal rights", which empowers a husband (mostly) to use the law to secure his wife's consent to sex, and in the event she refuses, gives him a wide latitude to get a divorce, on the grounds of "mental cruelty". Even the comparatively liberal Special Marriage Act provides for the same in Section 22. 

The law, as it stands, means that a spouse can accuse his partner of cruelty if she refuses "access" - that is, his access to her body, unless she has "valid reasons" for doing so. The judiciary recognises the validity of refusing sex only when the husband is physically incapable (impotent) or the wife is frigid. The question of choice - that a wife wouldn't want to sleep with her husband because she doesn't want to - and for whatever reasons she has- is conspicuous by its absence in both judicial and legal discourse. 

This is reminiscent of what Sir Matthew Hale, the Lord Chief Justice of Britain, said in 1736:

"But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself into this kind unto her husband which she cannot retract." 

The Code of Civil Procedure's Order 21 Rule 32 reinforces this further, by providing that violation of a decree of restitution of conjugal rights could be punished with either a financial penalty, or attachment of property, or both. On a superficial level, this law is also gender-neutral, that is, applies equally to either spouse, but it isn't too difficult to guess that with an essentially patriarchal judiciary, the odds would usually be stacked against the wife. 

Suppose she is game for sex, but unwilling to be impregnated. Her reasons could be varied - she might be wary of miscarriages - having suffered more than one earlier, or she might just not want children because of her own priorities in life. But the court would label her as being cruel to her husband, as it did in the case of Dr. Suman Kapoor (2008). 

Let's not take recourse to the all-too-familiar expression of postcolonial angst and pile the blame on the British, because in 1970, Section 20 of the Matrimonial Proceedings and Property Act barred all courts from entertaining any petition for restitution of conjugal rights. In 1991, this was taken further by the House of Lords' ruling in Regina v R, which unequivocally stated that such a right should have no place in a society where gender equality, even in the sacerdotal institution of marriage, was a rule, not an exception. 

But the Supreme Court, in the Saroj Rani case (1984) cited the 'sanctity of the institution of marriage' as a ground to overrule a very progressive Andhra Pradesh High Court ruling (in T. Sareetha's case, 1983) to uphold the validity of these provisions. 

Also, asking questions like 'If Nepal and Ghana have outlawed it, why can't we? ' is an exercise in futility. Because it was a bench of three judges of the Supreme Court in 2004, which effectively blocked the path to reform. In Sakshi v Union of India, the court was emphatic in its refusal of foreign laws and precedent entering Indian jurisprudence, because they could rock the foundations of the institution of marriage and destabilise society. And even if a Constitution Bench of iconoclastic guardians of the law were to overrule Sakshi, the guardians of sanskriti, culture and religion are bound to scuttle such an effort.