RIGHTFULLY OURS

The Gisele Pelicot Case: Spousal Rape is a Reality

In September 2024, the Gisele Pelicot case shook the conscience of the world. Mrs Pelicot is a rape victim who was shot into fame as a feminist icon after she decided to waive privacy and make the trial of her husband and 50 others public and gave us a phrase that became a feminist slogan: “Shame must change sides”. The crimes involved are inconceivably horrible. Over a period of 10 years, Mrs Pelicot was drugged and raped by her husband, Dominique Pelicot. Dominique did not stop at that horrible act – which was already a tragic betrayal of their marriage – he went far beyond it, to another abhorrable violation, he invited other men to rape his sedated wife. In the span of 10 years, this offence was repeated multiple times, with a total of more than 50 men now facing trial for rape of Gisele Pelicot. 

On rapists, Mrs Pelicot has a very important observation to make: “The profile of a rapist is not someone met in a car park late at night. A rapist can also be in the family, among our friends.” The shocking facts of the Pelicot Rape Case are a testament that marital rape exists and is a lived reality for many women. However, there cannot be a Gisele Pelicot in India, not because there are no marital rapes in India, but because the law in India simply doesn’t recognise the atrocity in question. The idea that a husband can rape his wife is inconceivable to some quarters of the society in India, including a judge of Delhi High Court who held in his judgement that non-consensual sex between a man and his wife cannot be called rape. But as the Gisele Pelicot case exemplifies, it is a reality. The difference is – in France, marital or spousal rape is explicitly criminalised; in India, a constitutional battle is being waged in the Supreme Court currently for its criminalisation. 

The absurdity inherent in the law: Karuna Nundy’s submission before the Supreme Court

The facts of the Pelicot case are particularly important, because they shoot into focus the clever observation made by Senior Advocate Karuna Nundy before the Supreme Court while challenging the validity of the Exception. Nundy read the provision that defines rape: it provides that a man commits the offence of rape when he “applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person.” Ordinarily, this would mean that if a person makes someone else rape a woman he doesn’t know, such person too would be liable for the offence of rape. However, if this person happens to be the husband of the victim, the law seems to suggest that he would not be liable, since the exception deems that a husband cannot rape his wife. The unreasonableness of this law is palpably evident. To put it into perspective, if the Gisele Pelicot case had happened in India, all the other men would have been liable for rape, but Dominique Pelicot would have been acquitted because he would have been saved by wide net cast by the Marital Rape Exception. 

Exemplifying the absurdity: the recent Chhattisgarh High Court judgement in Goraknath Sharma

Unfortunately, a recent judgement passed by the Chhattisgarh High Court in the case of Goraknath Sharma v. State of Chhatisgarh exemplifies this absurdity. In this case, Goraknath had committed brutal unnatural sex with his wife against her will which resulted in subsequent hospitalisation of the victim-wife and ultimately, her death. In her dying declaration, she particularly deposed that due to forceful sexual intercourse by her husband, she became ill. The trial court convicted Goraknath for commission of an offence under Sections 377, 376 and 304 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment of 10 years. The High Court, while hearing the appeal, formed inter alia the following issue – whether the offence under Section 376 and 377 of IPC are attracted in the circumstances that the accused and victim are husband and wife? 

Section 375 of the IPC defines rape. Exception 2 to Section 375 provides that sexual intercourse or acts by a man upon his own wife is not rape. Relying on this exception, whose constitutional validity is under challenge before the Supreme Court, the High Court held that no offence of rape can be committed by the husband upon wife. The court also extended the application of the extension to the offence under Section 377, i.e. unnatural sex, which is an independent offence. That is to say, the exceptions to Section 375 cannot be ordinarily extended to Section 377. As far as Section 304 is concerned, by noting that the trial court has not recorded any finding on how Section 304 is attracted in the present case, the High Court also quashed the case under that provision. Ultimately, the accused was acquitted of all offences. 

The Goraknath case is an unfortunate example of the absurdity of the Marital Rape Exception – a man who engages in such brutal unnatural sex with his wife that it results into the death of the wife is allowed to walk away unpunished because of this Exception. The Exception, and its application by courts, almost has the effect of saying – marriage grants the husband a tacit right to rape his wife. In one instance, a court has ventured to explicitly make such a suggestion. 

Conclusion

Karuna Nundy’s observations before the Supreme Court has been vindicated by this judgement of Chhattisgarh High Court. The Marital Rape Exception indeed has the unfortunate and unjust effect of permitting a husband to commit any form of sexual violence (including gang rape) upon his wife and escape the clutches of law. The Supreme Court must exorcise the ghost of Goraknath and strike down the marital rape exception as unconstitutional. For those who argue in favour of retaining the exception on the basis that it is necessary to preserve the sanctity of the institution of marriage, there is only one response – there is no sanctity in sexual violence. Sexual violence is sexual violence, within or outside the institution of marriage. The law must recognise the reality of marital rape and its victims. The law cannot and must not ignore the lived experiences of Indian women. It cannot erase the many Gisele Pelicots and Mrs. Goraknaths of India. There is nothing more unfortunate and unjust than a law that has the effect of saying to the Indian women that their husbands have the right to rape them and they cannot do anything about it. It offends not only the constitutionally promised right to dignity and bodily autonomy of these women, but it also offends their very womanhood. The law has already silenced and shamed the women of India for long enough, it is time, as Gisele Pelicot would say, that shame finally changes sides.