By Taruni Kumar

On 7 January 2018, the Delhi Police arrested a 34-year-old man for allegedly having “unlawful sexual intercourse” with his wife from whom he had separated. The case was registered under sections 323 of the Indian Penal Code, which criminalises assault, as well as under section 376B, which criminalises sexual intercourse with a separated wife without consent. Yes, there is an entire section of the IPC dedicated to explaining rape as committed by a man against a woman from whom he has separated and who is not a live-in partner or a divorced wife. You’d think rape would just be that, rape. But not in the eyes of the law in India. The law compartmentalises the criminality of the act based on the relationship of the victim to the rapist.

How does this segregation of criminality matter? Well, here’s the catch. Offences under section 376B are punishable by two to seven years of imprisonment. The punishment for rape minus these specific factors is a term not less than seven years and extendable up to life imprisonment. So, for some reason, raping an estranged wife is less of a crime than raping a divorced one.

Judicial separation is when a husband and wife live separately but do not divorce. The idea is that in this situation, there exists the possibility of a reconciliation. So, if one were to go by the IPC, there seem to be three levels in the ‘hierarchy’ of rape and they’re all based on the relationship of the woman to the man. A woman who is not married to the perpetrator, lives-in with him or has divorced him falls into the standard rape category. The rape of a separated wife has its own special category and falls lower on the hierarchy and of course the last rung is the rape of a woman who is the wife of the perpetrator which is not counted as rape.

It is important to note that it’s not that the law just doesn’t recognise the crime, but it has, in fact, actively added an exception that sets marital rape aside. There are in total, two exceptions to the standard rape law in the IPC. The first says that a medical procedure or intervention won’t count as rape and the second states, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

Yup, the law basically tells women that once they have married a man, they have given de facto consent to their husbands to have sex with them as and when they want. The act of marriage itself is an act of signing off power of attorney of one’s sexual agency.

If one is to take only a couple of steps back and take a look at India’s rape laws, it’s more than evident that the hierarchy is based on the concept of women as property. The punishment varies based on how much ownership a man continues to have over his wife.

Much has already been said about the lack of recognition of marital rape in India. The Delhi High Court is currently hearing arguments to criminalise marital rape from petitioners RIT Foundation and the All India Democratic Women’s Association. But the Centre has spoken in favour of retaining the exception clause that disregards marital rape. The logic is that criminalising marital rape would threaten the institution of marriage. While of course random or premeditated violence towards one’s spouse strengthens it? Dunno. This is just another example of how shaadi and sanskar are seen as more important than the protection of women in India. Or rather, how patriarchy enables the protection of the shaadi and sanskar that sustain it.

It goes without saying that rape laws that are built on a hierarchy that is built based on men’s views of the world are dangerous. But it seems like the obvious nature of this danger isn’t visible to everyone.

How does one even begin to talk about consent in a culture where the concept of a ‘no’ is nullified by the assumption of a woman as property? How can such a woman be expected to provide or withhold consent and how can someone hold the view that this consent would matter in such a situation?

How can the legal and judicial systems of the country, with a clear conscience, talk about eradicating rape culture when its fundamental principle of women as property is also the basis of the state’s laws to ‘protect’ women? Data from the National Crime Record Bureau (NCRB)’s 2015 report shows that in 95 percent of all rape cases, the victim knew the perpetrator. But as per the rape hierarchy, the maximum punishment is for rapes where the perpetrator is a stranger.

The conversation about criminalising marital rape is one that’s been ongoing for some years, but it is just as crucial to question the discrepancy in the quantum of punishment as laid down in section 376B. Rape is rape and the punishment for the crime cannot be defined in the context of how the victim relates to the perpetrator. A separated wife is not partially owned by her husband. Similarly, the sexual agency and consent of a married woman can be stated by nobody but herself.

Co-published with Firstpost.