Sexual Property: Staging Rape and Marriage in Indian Law and Feminist Theory

Author(s): Srimati Basu

Source: Feminist Studies , Spring 2011, Vol. 37, No. 1, CONJUGALITY AND SEXUAL
ECONOMIES IN INDIA (Spring 2011), pp. 185-211
Published by: Feminist Studies, Inc.

Stable URL: https://www.jstor.org/stable/23069892

REFERENCES
Linked references are available on JSTOR for this article:
https://www.jstor.org/stable/23069892?seq=1&cid=pdf-
reference#references_tab_contents
You may need to log in to JSTOR to access the linked references.

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

Feminist Studies, Inc. is collaborating with JSTOR to digitize, preserve and extend access to
Feminist Studies

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
 Sexual Property: Staging
Rape and Marriage in
Indian Law and Feminist Theory

Snmati Basu

Because prerogative power appears to its subjects as not just the

power to violate but also the power to protect—quintessentially the
power of the police—it is quite difficult to challenge from a feminist
perspective. The prerogative of the state, whether expressed as the
intervention of the police or as incessantly changing criteria for
welfare benefits, is often all that stands between women and rape,
women and starvation, women and dependence upon brutal mates,
in short, women and unattenuated male prerogative.
—Wendy Brown, "Finding the Man in the State," 1992

Did we triumph as feminists when rape (on the street, in the dorm, at
war) was recognized as violence (and not just a property violation), and
states enacted sanctions and protections against rape? For many of us who
petitioned and marched to demand remedies against sexual violence, it
was a feminist axiom to understand rape as an archetyped mark of patriar
chal dominance deeply resistant to legal accountability. Despite problems
such as botched prosecutions or shamed silences or the intransigence of
law, bringing recognition to sexual violence was indeed a symbolic success.
However, the satisfaction of legal remedies is also eclipsed by the problems
of their very institution: the decoding and use of these laws in a variety of
settings raises questions about meanings of violence and sex, agency, and
consent. Although it may be disconcerting to interrogate the terms of the

Feminist Studies 37, no. 1 (Spring 2011). © 20011 by Srimati Basu

185

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
186 Srimati Basu

fragile protections granted by laws against rape, I do so in this article not in

an attempt to undo those gains but to examine the context of rape legisla
tion in systems of exchange, property, and marriage.
Instead of locating rape legislation primarily under the rubric of
sexual violence, I examine its embeddedness in property and marriage
regimes within systems of exchange and kinship. In particular, the legal
terrain reflects sex as a form of property that allows women access to the
material privileges of heteronormative conjugality and constructs reme
dies that seek to compensate or restore this order. Thus, protection from
the state becomes problematic not only because of the ways in which it
inscribes gender in terms of the capital of marriage, but also because the
meaning of women's sexual agency is mediated by hegemonic scripts of
sexuality validated in legal encounters, both civil and criminal. This
creates a dilemma for feminist jurisprudence: the choice between theories
that emphasize sexual victimization as central to the construction of femi
ninity or those that posit equity as the condition of full citizenship.
I set the stage for these questions in a dramatic post-show performance
in Kolkata (formerly Calcutta), India, in January 2004. Kolkata police gath
ered in the wings of the Academy of Fine Arts, waiting for the play Phataru
to end, so that they could arrest actor Rudranil Ghosh on charges of rape
brought by fellow-actor Oindrila Chakraborty. The actor gave police the
slip that night, but for the next few days the papers were full of references
to the alleged rape, and an excited public discussed the mysterious circum
stances and the actor's reputation.1 Ghosh and Chakraborty had been
romantically involved and cohabiting for a while; at the beginning of their
relationship she had been going through a divorce but was now free to
marry and had brought the rape case on the grounds that Ghosh refused
to marry her despite his earlier willingness to do so. Chakraborty's charge
relied on a body of case law where men who had sex with women by falsely
promising marriage were deemed guilty of rape based on fraudulent
"consent." Ghosh did not challenge the fact that he had promised mar
riage but contended that he had rethought the decision over time.
I could hardly miss the newspaper headlines related to this case, and it
leaked into my fieldwork spaces as well: the Women's Grievance Cell of
the Kolkata Police headquarters, one of my fieldwork sites, would have

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
Srimati Basu 187

been the unit to which Ghosh was brought and hence was abuzz with
excitement. It appeared that the police felt some sympathy for Ghosh's
fugitive status, yet by virtue of being the very unit designed to pay atten
tion to violence against women, did not want to be seen as minimizing a
high-profile rape case. Their statements thus evoked and yet sought to
mediate the allegations. The parties' actor and journalist friends dropped
in periodically over a couple of days to make inquiries; Ghosh called on a
friend's cell phone. In one of these telephone conversations, I heard a
police officer advise him that "once the case has became so public there is
not much we can do. Try to talk to your common friends and get her to
withdraw the case or else make arrangements for bail. It's a hot time for
376 [rape] cases these days; there's nothing the police can do" (Ajkal 376
case-er gorom abhaoa cholchchey). A journalist friend of Ghosh's came in to
check with the officer shortly thereafter, saying they were trying to get
friends together to convince the couple to settle, or else "the lawyers
would get bloated over it for ten or twelve years" (naholey dosh-baro bochchor
dhorey ukiler pet phanpabey). Chakraborty's one condition was marriage, so
friends were trying to see if they could arrange anything. Remarkably, in
the space of the Women's Grievance Cell, the marital resolution of this
putative rape case echoed the more quotidian work of the cell, where alle
gations of domestic violence were evaluated and more often than not
resolved through family mediation.2
The case galvanized public discussion about "appropriate" modes of
arrest: actors and artists wrote about destroying the "sanctity" of the
theater, and the chief minister spoke out against the "unbecoming con
duct" of the police in "storm[ing] the auditorium in order to arrest an
actor [which] cannot be a policy of the government." While the police put
the arrest on hold, Ghosh applied for anticipatory bail to avoid arrest, and
the High Court judge declared in the subsequent plea hearing that Ghosh
and Chakraborty "should be able to settle their dispute through peaceful
discussion" in five days: "Both of you are in the same profession and know
each other. You should be able to sort out your differences through
discussions. The court should not interfere in the matter."3 Following
this, the couple met in the prosecutor's office to work out an agreement;
the case dropped out of media at this point and was presumably settled.

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
iSS Srimati Basu

While the Chakraborty-Ghosh case differed markedly from the hor

rific accounts of rape and the failure of police to file charges that are all too
often in the news, it created a frustrating representational problem. In
women's organizations and feminist groups, there were many troubled
conversations about how the case would affect rape prosecutions, about
class and uneven justice, and about the meaning of women's agency. Some
argued, in effect, that "one shady claim does not mean that other charges
of rape are fabricated as well," not too subtly dismissing this rape charge as
a misuse of law. This construction fit with the prevalent analysis from
women's organizations (more often applied to Family Court prosecutions)
that middle-class and elite women are sometimes able to manipulate the
law to their advantage while poor women have scant access to legal reme
dies no matter what the legislation. Many commented on the opaqueness
of the legal process and on the public's lack of knowledge of Chakraborty's
motivations or of means to evaluate Ghosh's alleged claims that he had
lost trust over time.

It was difficult not to feel irritated at the ways in which this apparently
feeble case was used in popular discussion to dismiss rape claims generally
or with the seeming prudishness of the plaintiff whose occupation, educa
tion, and progressive social milieu appeared at odds with her horrified in
vocation of cohabitation as a form of rape, as well as at Chakraborty's
erasure of her own sexual agency. But this hypervisible case also provided a
glimpse into the links between rape, marriage, resource acquisition, shame,
consent, and, ultimately, feminist organizing. This article examines these
linkages in recent rape cases in India to examine feminist theories of rape. I
argue for greater attention to the relationship between sexual violence and
the social contract of compulsory heterosexual marriage and examine the
circuits of property exchange within which rape is often encoded.

Rethinking Resistance:
Discourse, Materiality, and Culture in Rape
In her landmark article on the cultural construction of sexuality and rape,
Christine Helliwell reports a respondent as saying, "It's only a penis. . . .
How can a penis hurt anyone?"4 Provoking us to think beyond overdeter
mined patriarchal violence, Helliwell argues that the terms of rape are not

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
Srimati Basu 189

biologically determined. Rather, cultural constructions of gender differ

ence, in particular the violence or victimhood assigned a priori to gendered
categories—as in classic feminist formulations of rape—constructed the
power to violate through rape. The worldview espoused by Helliwell's in
formants in the Gerai community from Southwest Kalimantan, Indonesia,
is consistent with accounts from other anthropologists who have chal
lenged the universality of rape cultures3 but is difficult to reconcile with
recent accounts and patterns of rape in India. Further, it violates the
formulations of rape as fundamental to patriarchal violence that have
girded feminist organizing in India (and elsewhere) since the 1980s.
Section 375 of the Indian Penal Code defines rape like many other
sexual assault statutes: it specifies gender, rape being a man's "sexual
intercourse" with a woman6 "against her will," "without her consent," by
threat of harm, under the false belief that she is having sex with her hus
band, if she is incapable of giving consent because of having been drugged,
or if she is below the age of sixteen. Moreover, rape is defined as particu
larly heinous if she is pregnant, below age twelve, and in cases of gang
rape and custodial rape. Indian feminist mobilization around questions of
rape is often linked to the 1979 Mathura case, where a fourteen-year-old
girl's rape by two constables was deemed by the Supreme Court to be
consensual based on her lack of injury and audible protest and alleged
sexual experience.7 After long protest from lawyers, scholars, and activists,
some legal changes were put into effect, notably the category of custodial
rape where the presumption of guilt lies with custodial authorities. How
ever, custodial rape continues with impunity, such as the 2005 Marine
Drive case where a constable raped a teenager out with her friends.
Despite the putative legal deterrence of the above laws, statistics indicate a
sharp rise in the rate of reported rape even while other violent crimes,
such as murder, robbery, and kidnapping, have declined. The Indian
National Crime Records Bureau statistics record 2,487 reported rapes in
1971, the first year data were gathered; this increased to 10,068 in 1990 and
to 18,233 in 2004. Estimates are that three-quarters of rapes are not
reported.8 In the Women's Grievance Cell at Kolkata Police headquarters
where I visited, only five of thirty-three reported rape cases in 2002 were
stranger rapes.

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
190 Snmati Basu

Let it be abundantly clear that there is no dearth of stark violence in

recent accounts of rape in India. The following sample of recent cases from
various parts of India illustrates the ways in which rape is used for gender,
caste, class, and religious domination and for marking public space or
exerting political pressure, in a perfect coalescence of sex and violence.
Two women in Delhi were gang-raped in August 2002; also that month a
mentally challenged twelve-year-old was raped on a suburban Mumbai
train while seven passengers looked on. In 1992, Sathin (social worker)
Bhanwari Devi was raped by neighbors in front of her husband as "punish
ment" for trying to prevent the marriage of a one-year-old child. In a
highly controversial 2005 case, a woman named Imrana was told by a local
Muslim cleric following her rape by her father-in-law that she should now
marry him and treat her husband as a son, their marriage having been
annulled by the rape. Four Dalit (low-caste, so-called untouchable groups)
women were raped by landed upper-caste men in a Bihar village for not
voting for a particular candidate in the panchayat (village-level) elections in
August 2006. The 2002 Gujarat riots were notoriously marked by vicious
rape-murders of Muslim women that underlined the use of sexual
violence to mark Hindu religious-nationalist domination, abetted by state
power. Delhi Police Commissioner R.S. Gupta famously opined, "Crime
against women will drop by 50 percent if they are careful in the way they
dress, if they know their limits and if they do not exercise unsafe behav
ior,"9 emphasizing the delineation of rape as a domination of public space
and appropriately gendered citizenship. In these scenarios, where the penis
is emphatically used to humiliate, brand, and terrorize, it is easy to affirm
Catharine MacKinnon's assertion that "sexuality is central to women's
definition and forced sex is central to sexuality," so "rape is indigenous, not
exceptional, to women's social condition.'"0
But can rape be defined with such universalizing certitude, or is it,
instead, an expression of a specific formulation of gender? Arguing against
the alleged essentialism of radical feminist analyses that portray rape as the
visible example of patriarchal relations, Helliwell claims that "rape itself
produces such experiences ['of men's genitalia and sexuality as inherently
brutalizing and penetrative and women's genitalia as inherently vulnera
ble and subject to brutalization'] and so inscribes sexual differences onto

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
Srimati Basu 191

our bodies." Helliwell locates rape as constitutive of the very definition of

gender and "sexual polarity" in particular cultural formulations":

While it is certainly the case that rape is linked in contemporary Western

societies to disparities of power and status between men and women, it is
the particular discursive form that those disparities take—their elaboration
in terms of the discourse of sex—that gives rape its particular meaning and
power in these contexts."

Nivedita Menon also contends that both feminist and sexist analyses
"mystifjy] 'sexuality' as the truest, deepest expression of selfhood" or as a
"natural" entity existing outside discursive categories.12 To take the argu
ment out of the realm of "the West," one may therefore look to rape sce
narios as scripts that inscribe gender-power dimorphism and meanings of
sexuality and that serve to inscribe the body in a given culture. The Indian
examples in the previous paragraph, while also pertaining to realms such
as urban public space, caste relations, religious interpretation, and crimi
nal justice systems, also enforce gendered power. They are self-conscious
and self-perpetuating instantiations of using the penis to mark terror and
subjugation.
Because the early strategies of feminist mobilization aimed at estab
lishing the significance of sexual violence, the conundrum for later gener
ations of feminist theorists has been to imagine solutions beyond legal
deterrence and to address such discursive constitutions of sexual violence

and their effects on understandings of bodies and sexuality. Sharon

Marcus advocates foregrounding the discursiveness of rape and thence
undoing the power of the "gendered grammar of violence": "A feminist
politics which would fight rape cannot exist without developing a lan
guage about rape, nor without understanding rape to be a language."
Marcus has been critiqued for overemphasizing the healing power of
language and for implicitly victim blaming by making fighting rape a
matter of mental resistance. However, she is fundamentally arguing for a
change in signifiers of violence and embodiment in ways that seem con
gruent with Helliwell's argument in that she sees that "social structures
inscribe on men's and women's bodies embodied selves and psyches the
misogynist inequalities which enable rape to occur."13 Thus, feminist solu

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
192 Srimati Basu

tions could involve undermining inscriptions of body and language as a

way to defusing material effects.
Although Carine Mardorossian is one of Marcus's critics, her own
argument may be read as complementing this perspective by bringing
questions of voice, experience, and possible empowerment to the discur
sive construction of violence. Mardorossian contends that "victim" is not

a category beyond reparation and that forms of resistance and social trans
formation may be embedded in rape survivor narratives and subsequent
organizing. She propounds a "new theory of rape" that would "supple
ment feminist accounts of women's experience with a contextual analysis
of the ways in which experience is given meaning at a particular time and
place"; that is, it would attend both to cultural inscriptions of violence as
well as to voices of resistance.14

The accounts of rape in contemporary India at the beginning of this

section are a forceful reminder that the material bodies are used not just
to harm or to deploy fear but also to influence the ways in which the
body, gender roles, and sexuality are understood through that violence.
The effects of sexual violence may be modulated by legal responses, femi
nist agitation, or political negotiations, but these incidents underline
gendered power and vulnerability. Undermining the power of rape to
wound by highlighting its cultural constructions and the resistances of
survivors could thus be a useful solution that does not just rely on the
scant protection of law enforcement.
Lest we drown in the seeming ubiquity of rape as violent power in the
above cases, an exemplar of embodied resistance comes from the women
of Kasturba Nagar. During the courtroom remand of Akku Yadav, who
had terrorized the town with his gang by raping numerous girls and
women, maiming and murdering, extorting money, and walking on bail
after each arrest, these "ordinary slum-dwellers and daily wage-earners"
stormed the courtroom, attacked, castrated, and killed him. The women
declared their act a "freedom struggle," as "social justice" rather than
"murder," and replied to those who were horrified by the vigilantism that
"there is no justice for the poor. What if this had happened to a minister's
wife or daughter? So, we decided to do it ourselves." Using a remarkable
strategy of plural culpability, scores of women claimed to have been the

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
Srimati Basu 193

perpetrators; the police were unable to arrest any specific women for the
crime (and even alleged that some men did it and women were protecting
them).15 Although embedded in a horrific narrative of community terror,
the Kasturba Nagar women's actions indicate the retaliatory use of bodily
violence not just to harm or kill but to transform the signifiers of victim
hood, class, and legal protection as well. They challenged the power of
rape through a collective, coordinated, visceral response that elides legal
punishment, in blatant mockery and rebuke of the law. Similarly, the rape
of activist Bhanwari Devi described above became a site where ideologies of
rape were consciously challenged by protest campaigns, such as in slogans
that mocked the loss of honor of the rapists.16
In contrast, Chakraborty's claim of harm and violence sits more un
comfortably askew feminist analyses of rape: it does not evoke pain, coer
cion, or humiliation; indeed, it implicates feminists by questioning
women's sexual agency and affirmative consent. But it does push us to
look beyond the body, to consider rape in terms beyond corporeal vio
lence. Her actions and the following cases gain meaning, I argue, when we
consider the social structures of marriage and the legalities through
which marriage is instituted. Feminist struggles to theorize sexual agency
and sexual victimization, equality and difference, are embedded in these
contradictory legalities.

Marriage for Rape, Sex for Compensation

While Chakraborty's claim of rape is one of the most notorious rape cases
in recent Kolkata history, it is hardly an aberration. During my fieldwork
in the Family Courts of Kolkata and the Women's Grievance Cell of the
Kolkata Police, I found that people routinely use multiple legal venues to
play off civil and criminal claims against each other and, in particular, to
negotiate the economic difficulties of divorce for women through lump
sum alimony and child support in the absence of a legal notion of joint
marital property. Allegations under Section 498 of the Indian Penal Code
(encompassing domestic "torture") are sometimes used to leverage better
maintenance settlements or reconciliations. Ironically, the very invocation
of this much-maligned provision taints the case for judges and police
undermining its stated intent of protection against domestic violence.

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
194 Srimati Basu

Similarly, criminal law provisions for return of dowry are used as a proxy
for recovering matrimonial property, however little. In these cases, in the
Chakraborty rape case, and in the rape cases that follow, criminal law
provisions that rely on essentialized notions of female victimization and
female sexual passivity offer women protection, in the form of criminal
sanctions by the state, while civil remedies offer few punitive solutions
against failures to provide maintenance or housing.
Women's chances of deploying the criminal-sanctioning power of the
state vary depending on their class, caste, and religion. Judges and law en
forcement officials do not necessarily follow the feminist spirit of these
laws. Still, these criminal provisions potentially confer gender-based enti
tlements. To use an almost dusty formulation from 1980s feminist jurispru
dence, these laws highlight gendered difference (and violence against
women as a fundamental expression of differences in power) and offer
protection. In contrast, civil marriage law is more gender neutral on its
face, although it ultimately reinforces male economic and social power.
Scholars of gender and law in India have demonstrated the inequities of
marriage law in a variety of settings, echoing classic formulations such as
Martha Fineman's analysis of economic vulnerabilities generated through
the social categories defined in marriage. Similarly, Susan Moller Okin
argues that divorce law both reflects and creates economic disparities: "By
attempting to treat men and women as equals at the end of marriage,
current divorce law neglects not only the obvious fact that women are not
the socioeconomic equals of men in our society, but also the highly rele
vant fact that the experience of gendered marriage and primary parenting
greatly exacerbates the inequality that women already bring with them
into marriage."17 Given the limited "civility" of equal marriage, criminal
law can be used as a form of leverage.
A few recent cases illustrate the interaction of the laws governing rape
and marriage, particularly the ways in which one entity works in the
shadow of the other. The first example is drawn from my fieldwork at the
Women's Grievance Cell. A large man wearing a fancy suit and gold
jewelry came in with a huge file of legal papers, discussing "Suparna's"
attempts to set up a meeting and have him bring her money. The story, as
narrated by some officers after his departure, was that he claimed to be in

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
Srimati Basu 195

media/film and to have been set up by a gangster group that drugged him
and then entrapped him with a woman who was, presumably, a profes
sional extortionist. Unaccountably, he continued to be involved with the
group, as well as the woman. He had set the woman up in a flat, had a
child with her, and lived there quite a lot of the time, all the while claim
ing that he had been coerced into a registered marriage.18 His fifty-four
year-old wife had threatened divorce on grounds of adultery if he did not
quit this relationship. Suparna had threatened to file a §376 (rape) case on
the grounds that he went through a formal bigamous marriage with the
full knowledge that it was invalid and hence fraudulent, thereby continu
ing a sexual relationship with her under circumstances she would not
have knowingly consented to. The police officer told me that in her meet
ings she had stressed that she needed to be fair to both women's claims.
And in fact, these women who bitterly opposed each other had each
framed their claims with a tidy strategy: his best recourse was to use
persuasion and/or his ample financial resources to extricate himself. As
with Chakraborty's case, here rape is evoked in the context of a long-term
cohabitation by a woman who is not claiming a violation of chastity nor is
solely dependent on marriage for economic sustenance. Regarding a simi
lar case, Menon opines that a woman may be "cheated and exploited" in
such situations, but "if as feminists we were to see it as rape, we would be
participating in a discourse that sets up sex as legitimate only within the
framework of marriage."19 Yet although this case evokes uneasiness about
recognizing female sexual agency and measuring respectability through
social status conferred by marriage, it also illustrates that criminal com
plaints are used to contest "civil" issues of marriage entitlements.
Moreover, these two cases are part of well-worn legal trajectories in
which rape prosecutions invoke marriage as putative solutions. They un
derline the stature of rape as sex rather than violence. But they also depict
rape as a violation of property, to be made whole by restoring the woman
to the marital state to which she was entitled when exposed to sex. As the
following cases show, marriage is the form of property synechdocally at
stake in rape. In these cases, a marriage proposal or relationship serves as
the alibi that erases notions of violence. In 2002, Rafik Taksir's imprison
ment for rape and kidnapping was set aside by the Goa High Court when

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
196 Snmati Basu

he pointed out that he had married the rape survivor after his conviction:
the judgment said "it is true that the scars of trauma suffered by the
victim cannot be erased from her memory but the evidence on record
does indicate to a certain extent that the appellant and the victim were in
love."20 Similarly, in 2005, a Delhi court acquitted Kanhu Panda of rape
and kidnapping (originally charges were filed against him and three of his
friends for gang rape) when letters from the woman and pictures of their
wedding ceremony were presented: the judge commented that "if one
goes through these letters, there remains no doubt that the prosecutrix
was deeply involved with the accused"; her pictures in wedding attire
served as evidence to prove that she did not marry under coercion. Panda
"expressed his desire to marry the victim despite belonging to a different
caste" and was granted bail in order to marry at the Bhadrak temple
where "their well-wishers had also hosted a grand feast to mark the occa
sion," then went back to jail as a prisoner under trial "hop[ing] his wife
will withdraw the case against him and look[ing] forward to a married life
outside jail."21 Remarkably, evidence of consent often appears visually
rather than orally in these appellate judgments (old love notes, wedding
pictures), validating past or future relationships rather than the time and
context of the sexual act at issue. This has the effect of erasing violence
from rape, grounding agency in marriage rather than sex, and disman
tling the very notion of consent.
Notions of consent were also transformed when the High Court
reduced rape charges on a variety of exculpatory grounds that invoked
the motivation of defendants (mens red). This inverts the common criminal
trial procedure wherein the raped woman's state of mind is at the core of
the argument, as Susan Estrich argues for U.S. law.22 In these cases, the
question of women's motivation becomes almost invisible, except by
proxy in filing the charges. These exculpations included several examples
of the accused being "an illiterate laborer from a rural area," connoting
rape as an urban phenomenon related to confusion of values over sexual
ity and public space, and signaling feminist insistence on legal sanctions
against rape as an urban value incomprehensible to those ensconced in
local understandings of male sexual privilege.

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
Srimati Basu 197

Recent case law in which the courts squarely address questions of

female sexual desire also demonstrate the practical pitfalls of highlighting
possible sexual agency. In the 2006 case, Vishnu v. State of Maharashtra,23 hailed
as a landmark judgment because the rapist was convicted on the sole testi
mony of the "prosecutrix" (accuser), the court marked its decision as one
saturated within deeply gendered understandings of shame and chastity:
The statement of the prosecutrix, in our view, is quite natural. ... In the
traditional non-permissive bounds of society in India, no girl or woman of
self-respect or dignity would depose falsely, implicating somebody of
ravishing her chastity by sacrificing and jeopardizing her future prospect of
getting married with a suitable match. . . . [This] also would invite the
wrath of being ostracized and cast out from the society she belongs to and
also from her family circle.

This "prosecutrix" may receive the benefit of the doubt because she was
seen as innocent and virginal; however, women not perceived to embody
perfect chastity or class privilege would not, by implication, warrant the
same protection. In contrast, a more complex notion of women's sexual
agency was deployed in the order of the 2003 case, Uday v. State of Karnataka,
to dismiss the notion of a naive belief in "promises of marriage." The court
determined that the question of marriage was not a false promise because
the woman had been "overcome with emotions and passion" and
"succumbed to the temptation," that she had willingly consented to sex
"not because he promised to marry her but because she also desired it."2"1
The ascription of sexual agency to the woman was, not surprisingly, to
her legal disadvantage. This raises the question of whether this case should
be commended for its equitable recognition of women's sexual passion or
condemned as a slippery new pathway for dismissing rape charges by
putting the motivation of the raped subject at the center of the claim.
The most transparent example of the equivalence in currency be
tween marriage and rape is provided by a 2005 case, in which Bhura, who
worked as a ward boy at a hospital, raped a nurse, gouged out her right
eye and severely injured the left, locked her up and left her for dead. But
in a postconviction application submitted prior to sentencing, he asserted:
"To save the life of the victim as well as the lives of both of the families, the
convict, from the core of his heart, without prejudice to the merits of the

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
198 Srimati Basu

case, is ready to perform marriage with the victim." The nurse vocifer
ously responded that her assailant should be accorded the maximum
punishment instead or even hanged; feminist organizations berated the
judge for even admitting this application, noting that "the court should
not be a marriage bureau for criminals."25 However, the application repre
sents not just a desperate and pathetic bid for clemency but also an offer of
reward that a man with the worst of prospects has the power to grant.
How could we not believe in genuine repentance and integrity if marriage
was on offer?

The obverse of the court's implied support of marriage offers in rape

cases is the punitive zeal directed at men who got sex by promising future
marriage. "Back Out of Marriage at Own Risk," the Economic Times headline
proclaims: the public prosecutor charged Kalipada Garu with "exploit[ing]
the poverty and physical disability" of a woman who "had been lured by
false promises of a happy married life and agreed to sleep with him" and
who had filed charges upon learning he had married someone else after
they spent many weekends at tourist hotels. In 2005, a Nagpur woman filed
a case of rape against a Delhi man she had met after placing an Internet
matrimonial ad, citing his lies about his life and the abortion he had forced
on her. A Hooghly (West Bengal) judge sentenced a man to seven years in
prison, contending that the false promise to marry was "tantamount to
rape" and that the punishment would "ensure 'that no one in future dares
to cheat innocent girls.'" In the 1996 case, Bodhisattwa Gautam v. Subhra
Chakraborty,26 Chakraborty was awarded a compensation payment for rape
on the basis of false promise of marriage, particularly because the man had
put her through a fake ceremony in front of "his God," that is, Buddhism,
thus evoking the horror of religious exogamy.
Recently the question of what constitutes "false promise" has been
refined. The 2005 case Deelip Singh v. State of Bihar is one of the most recent to
set the standard that "consent given by a woman believing the man's
promise to marry her would fall within the expression 'without her
consent' only if it established that from the very inception the man never
really intended to marry her and the promise was a mere hoax."27 Again
this returns to the mens rea of defendants and to the social circumstances of

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
Srimati Basu 199

the case, prosecuting rape using standards of fraud rather than invoking
legal definitions of sexual violence.
Tsun-Yin Luo's study of suggestions to marry rapists in contemporary
Taiwan maps ideological similarities in gender formations in a very differ
ent socioeconomic milieu than India's. Luo contends that the "cultural

fetish for female virginity or chastity," combined "with the institutional

emphasis on the sexual component of rape, contributes to a distinct
cultural construction of rape in Chinese society" and "manifest[sj itself in
a socially sanctioned connection between rape and marriage." In the midst
of reporting worries about fear of disclosure, loss of virginity, guilt and
blame, some of her respondents reported that they did get offers of mar
riage that were designed to mark the rapists' commitment to them or to
settle legal issues, that there was widespread social and legal endorsement
of the offer, and that they entertained the offers as strategies to save their
business and reputation, and, in one case, to get foreign residence.28 Luo
argues, however, that these acceptances reinforce the virginity fetish and
the sexualization of rape and worsen resulting trauma among survivors
who refused to comply. As with the Indian cases, these strategies do not
strengthen survivors' sense of sexual agency, and they heighten rather
than ameliorate the status of rape within patriarchal relations.
It is obviously impossible to discern the harm or violation of rape
survivors from the legal framing in the Indian cases or to determine
whether their families had coerced them into a certain legal strategy. In
October 2005, the Delhi High Court enraged women's groups by declaring
the validity of the marriages of two 16-year-olds (who are legally deemed
incapable of sexual consent) who claimed their husbands were being
falsely accused of kidnapping and rape and who sought to escape the insti
tutional homes where they were being held. That case, and another where
it was held that the woman was neither underage nor kidnapped but had
been betrothed to the accused and a false statement in her name had been

provided by her brother,29 points to another frequent use of legal provi

sions. In these cases families who disapprove of matches or elopements,
often on the grounds of caste or religious endogamy, bring kidnapping
and rape charges against the eloping men. Public knowledge of sexual
violence appears to be less stigmatizing in this case than the possibility of a

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
200 Srimati Basu

permanently transgressive marriage; the marriage, here, is not allowable

as property and therefore rape must serve as residue. Legal protections
against rape then serve to solidify caste and religious hegemonies and to
render women's choices moot.

Both scenarios—cases where the damage of the alleged rape is sought

to be made whole through reference to prior acquaintance or post-event
marriage and cases where any promise to marry constitutes a contract to
the property represented by the woman's sexuality—invoke very different
meanings of rape than those envisioned in radical feminist analyses. But
they rely on a related notion, that rape is a patriarchal violation broaching
women's vulnerable sexuality, and sex is a form of rape given women's
lack of choices in a hostile ideological system. There is no discursive space
to distinguish between sexual activity and rape other than through the
shadow of marriage, which acts as the proxy for consent and future secu
rity. To apply Helliwell's formulation, the "marriage promise" scenario is
culturally specific to these Indian (and Taiwanese) cases rather than an
expression of universal gender structure. It manifests particularities of that
sex-gender system, where kinship structures, labor patterns, and property
regimes reflect and reinforce women's reliance on compulsory heterosex
ual marriage and upon sexuality as a commodity that secures its acquisi
tion. Marriage is the only possible beneficent future; rape is a trauma that
threatens access to these benefits.

The Violence of Marriage

Of course, feminist theory cannot envision marriage as a

ever strategic, to rape. Marriage and its associated regimes of
sexual control have been cast as the lynchpin of patriarchal r
back as the early-nineteenth century among Utopian socialis
of feminist literature, which locates labor, reproduction, an
in marriage at the core of consolidation of patriarchal relati
marriage law as inscribing gendered heterosexual subord
the sign of economic and moral protection, is critical to
gendered codes through which rape prosecutions and mar
are purveyed.

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
Srimati Basu 201

Scholars of family and law have documented the inequalities of

marriage as a legal institution in South Asia and other settings.30 Their
examples illustrate Okin's formulation that "gender-structured marriage
involves women in a cycle of socially caused and distinctly asymmetric
vulnerability" and that contemporary women (in the United States) "are
made vulnerable by marriage itself."31 Clare Chambers argues that struc
tures of inequality express themselves discursively through the very ideas
of sexuality that undergird marriage regimes, noting that "this patriarchal
form of sexuality imprints itself deep into the bodies, thoughts and identi
ties of individuals . . . moreover, sexuality is deeply hierarchical. . . .
Hierarchical sex [in marriage] is as much the source of pleasure and fantasy
as it is the source of rape, abuse and distress."32 Marriage thus works hege
monically through seeming pleasure and consent to solidify material
subordination, setting the norms of consensual behavior in other domains.
Such socioeconomic difference constituted through sex and marriage
is provocatively attributed by Carole Pateman to the very institution of
heterosexual, patriarchal marriage as an inherently inequitable contract
in her assertion that "men's domination over women, and the right of
men to enjoy equal sexual access to women, is at issue in the making of
the original pact. The social contract is a story of freedom; the sexual
contract is a story of subjugation." The marriage contract, in her reading,
is the only contract women are permitted to participate in, but they have
no parity in the process: "Only the marriage contract can turn use of
sexual property ... into the use of a person. But it is the husband who has
use of a person, not the wife." Pateman argues that the invisibility of the
sexual contract, along with the ways that it undergirds marriage, prop
erty, and sexual expression, makes it impossible to articulate those cate
gories fairly or fully within the realm of other social contractual
negotiation, including any legal conceptions of equity, without undoing
the social contract altogether. The logical solution she posits is to elimi
nate marriage and divorce and to enter "an endless series of very short
term contracts to use another's body as and when required."33
Pateman has been critiqued for both essentialism and the presump
tion of paralyzing oppression; yet I find her argument useful for thinking
about the ways in which rape and marriage are linked as forms of sexual

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
202 Srimati Basu

property. Men's relationship to marriage in these cases is one of either

shirking full value or paying up on such property, and women embody
forms of property while needing to claim marriage as the seemingly sole
form of socioeconomic sustenance. Marital rape is a categorical impossibil
ity in this scheme. Pateman's model fits most blatantly with early rape
law, such as that identified by Johanna Niemi-Kiesilainen in the context of
Nordic history in the Middle Ages and the early modern period, where
"criminal law supported marriage law" and "the crime 'maiden violation'
protected the authority of the custodian, that is, of the father or other
male relatives, to arrange a maiden's marriage by making the seduction of
an unmarried girl a crime."31
Contemporary rape laws may seem very different because they high
light sexual violation, but when that violation is understood as precluding
futures in which marriage is critical to opening up the primary means of
economic sustenance, then the linkages that Pateman identifies underlie
the law. The very notion of consent is dubious because it appears to be
more concerned with what is defined as legal sex rather than with
consent to sexual participation, validating Pateman's contention that
women in this context are unable to be full participants in a social
contract of full and free exchange given their primary affiliation in terms
of the sexual contract. Christine Keating argues that the "postcolonial
contract" in India is a more sophisticated version of Pateman's notion that
the social contract continues to subsume the sexual contract, in that it
straddles discourses of equity as well as negotiations with the hegemonic
"racialized fraternal democratic order." Because "fraternal solidarity [and
the notion of a homogeneous political sphere] depended on the preserva
tion of control over women in the family," the Indian Constituent
Assembly produced a postcolonial legal code where gender equality was
asserted as a fundamental right in the constitution but was undermined
by systems of "Personal" law governing families which retained blatant
legal subordination.35
The state looms large here as the entity that sanctions marriage with
particular statuses and socioeconomic entitlements. Jacqueline Stevens
looks to recent case law to argue that "marriage genders the fully devel
oped political state and its citizens, even when it appears that the state does

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
Srimati Basu 203

not have sex-specific requirements for the duties of 'husband' and 'wife'. . .
. The state actively participates in establishing the distinction between what
is profane (instrumental, everyday life) and what is sacred (ritualistic expres
sions of group particularity)." Stevens contends that kinship is a funda
mental sacred axis around which the state functions, echoing Nancy
Cott's assertion that "the institution of marriage and the modern state
have been mutually constitutive" by demonstrating the ways in which the
state sanctions "terms of legitimacy," "form|sj of kinship relations," and
hence the premises of full citizenship.36 Wendy Brown characterizes the
state somewhat differently as acting to inscribe the family as a prepolitical
domain beyond direct intervention but starkly shaping sociopolitical rela
tions as a result, thereby "operat[ing] as an insignia of the extent to which
politics between men are always already also the politics of exchanging,
violating, protecting and dominating women; the one constitutes the
imperatives of the other."37 Rape, in this formulation, interrupts the
patterns through which circuits of kinship are to be rendered sacred and
thereby evokes the wrath of the state by striking at its foundational value;
norms of kinship are restored through state-sanctioned legal categories for
which marriage is the conduit. However, because, as Stevens notes, "the
apparent equality of the political statuses 'husband' and 'wife' actually
obscures an underlying dynamic that continues to render marriage a site
of gendered political inequality,"38 marriage per se is scant compensation
even though it is the optimal identity before the state.
Stevens's and Brown's conceptions of marriage collapse the space be
tween conjugality and kinship, between the couple and broader impera
tives of family, depicting them as co-constructed and mutually
beneficial. It bears noting that the separation between these two terms,
however, has been deemed by historians of South Asia to be a critical axis
of the emergence of modernities: notions such as the rise of the individ
ual legal subject interpellated by market forces and conjugal intimacy
within the safe haven of the nuclear family emerged in nationalist
discourse, pushing against the dominant needs of the extended familty
and affecting the milieu within which postcolonial marriage law (center
ing on the couple) was constructed.39 Still, these historians assert, these
new subjectivities existed alongside conservative patriarchal formulations

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
204 Srimati Basu

of kinship. In any case, "modern" ideas of conjugal equality did not alter
the status of marriage as the path to women's property.
Seeing marriage as an axis for instituting and sheltering gendered
subordination, even while granting legal privileges, is critical to under
standing the rape cases analyzed here. In the state sanctions of marriage to
rapists and the use of rape law as a tool to punish defaulters to marriage, as
well as in the attempts of Oindrila Chakraborty and Suparna to make sex
criminal unless it was converted to marriage, we see both the privileged
status conferred by marriage, as well as the irony of a legal strategy that
seeks out a category of subordination (which is also "protection"). To
return to Helliwell and Marcus's suggestions that we challenge discursive
constructions of rape and their embeddedness in gender norms by altering
the power of signifiers, invocations of marriage in the shadow of rape are
singularly ineffective in transforming valences of sexual passivity or socioe
conomic dependence; they reinscribe victimhood even as marriage offers
forms of redress.

Beyond Legal Protection

Feminist activists and scholars have struggled for decades to

violence be recognized within law as a transgression of bodily in
subjectivity, given the power of law in the modern nation-stat
tute safety and sexuality. But they have had to do so by utilizi
signifiers of gender even as they attempt to transform meaning
in the process reinscribing some of the very meanings they ch
dilemma, then, is the terrifying one of stepping outside the "p
afforded by law (and the ideologies of "sexual contract" throug
is constituted) to an imagined space of alterity/equity. Wendy
pinpoints the problem in the course of debating the use of
versus "difference" arguments in U.S. gender discrimination ca
Should we . . . defend traditional rape laws on the ground th
defined by law as penetration by the penis of the vagina, is a sexua
the psychological and social consequences of which are so uniqu
and rooted in age-old power relationships between the sexes that
neutral law would fail in important ways to deal with the world as
is? Or should we insist that equality theory requires that we reorg

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
Srimati Basu 205

understanding of sexual crime . . . and that legislation which defines sexual

offenses in gender-neutral terms, because it resists our segregationist urges,
and affirms our common humanity, is therefore what feminists should
support?

"Do we want equality of the sexes—or do we want justice for two kinds of
human beings who are fundamentally different?""10 Williams asks, echoing
Helliwell's contention that law itself makes sexual difference salient.

While Williams leans to the "equality" side of the question, arguing that
that is ultimately more beneficent for the symbolic inscription of gender
within law, the way in which she poses the argument drives home the
potential incompatibility between these two views. Carol Smart, tracing a
similar dichotomy in feminist discourses on rape law between liberal,
gender-blind, rights-based approaches and that of moral outrage and
protection, emphasizes the irony that both positions can be successfully
argued but that they "shared with legal discourse the construction of
woman as her sex, and in turn a sexed body open to/vulnerable to the
'desires' and designs of men. In the former the body becomes the eternal
victim, in the latter the deserving victim. Neither discourse empowers."
Thus, Smart notes, the problem is that

feminism may not be able to articulate alternative accounts because of the

real fear that law will snatch back the minimal protection it offers. ... A
feminist discourse which might attempt to construct rape differently,
which might attempt to deconstruct the biological/sexed woman, is
silenced by the apparition of law's sexed woman to whose survival it is un
willingly tied.'""

Can we afford to critique the essentialist bases of rape legislation and their
construction of the gendered body, when feminist movements have
worked so hard to seek legal recognition of rape as an act of violence
working through social categories of sex? Can protection ever alter the
terms of power? Yet the related question is, can we live with marriage as a
form of compensation for rape claims or indeed with marriage as any kind
of compensation at all?
Oindrila Chakraborty's case provides a reminder of this uneven ter
rain of rape legislation in India. She utilized a solid legal strategy (that

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
206 Srimati Basu

turned out to be an effective bargaining strategy), relying on a set of prece

dents invoking female vulnerability and innocence and male predation.
The case may ring false to us if we impose the notion, based on her socio
cultural profile, that she is cynically evoking the ideal rape victim of
juridical discourse. But we have no accounts of her violation or subjectiv
ity on which to base any such determinations. What the case reveals,
however, is the link between harm and compensation and between sex
and legality involved in cases of rape and marriage; the ways in which the
legal norms in these two categories are balanced in mutual translation
indicates the ways in which they jointly structure sexuality, property, and
reproduction. The fact that class position might allow one to manipulate
the gendered category of rape underlines the complex interactions of race,
class, or caste with gender in the construction of legal subjectivity. Marital
remedies for rape thus solidify rather than transform the hegemonic
inscription of marriage and sexuality.
Some recent legal decisions in South Asia have been hailed as finally
recognizing the seriousness of issues feminists have campaigned against for
decades,42 because they have underlined rape as heinous, women as ruined
by rape, and rape prosecution as meriting ultimate swiftness and punitive
power. Marital rape has been taken notice of in a 2004 Nepal Supreme
Court judgment. Pakistan's Hudood ordinances that severely punish rape
victims if the rape cannot be confirmed by four male eye-witnesses or by
the perpetrator's confession are the subject of vigorous conversation, if
disappointing political negotiation. In 2002, the Karnataka government
planned to launch legislation to deny government jobs to rapists, in a show
of public sympathy. A Jodhpur fast-track court created legal history by
completing a rape trial and handing out convictions to two men for raping
a German tourist in May 2005. A Bihar court handed out a rape conviction
in five hours in 2006. DNA tests are now mandatory in all rape cases. The
Indian National Commission for Women is putting together a program to
provide women with Rs 20,000 shortly after a rape, and with Rs 200,000 if
the rape is proved, plus legal aid, protection during trial, and medical and
psychological help.43 The Times of India reported in 2006 that the Supreme
Court had "a major verdict scripting a fresh chapter on what is seen as a
device to secure 'consent' for sex," pronouncing that "those who lure

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
Snmati Basu 207

impressionable girls into sexual relationship [sic] with false promises of

marriage are guilty of rape."44 In another dramatic decision, "the Supreme
Court has advised all trial courts to take a victim's testimony as "gospel [sic]
truth, unless it is tinged with a motive to falsely implicate the accused,"
citing women's hesitancy to bring rape to public notice to protect their
families; it had earlier urged lower courts to use their power for reducing
sentences sparingly.'15 These decisions cast the state as progressive and civil
society as engaged in negotiation, active in addressing women's sexual
exploitation, attending to women's claims and voices. They also (realisti
cally) highlight women's status as victims and their economic neediness,
taking on the protective welfare function of the modern nation-state in
this politically felicitous arena. However, the nature of the reforms also
signals that rape legislation and policy "beneficial to women" can provide
little more than victim-sensitive sops when the structure of sexuality,
marriage, and property through which such reform is constituted is not
challenged in the process, nor any discursive realignments established.
"Law," Stevens asserts, "constitutes marriage. It does not passively
reflect or regulate preexisting marriage norms. Unlike most other laws,
marriage law is . . . 'performative.'"46 The terrain of rape law explored in
this article indicates that it too is constituted in articulation with marriage
law, is similarly performative in shaping subjectivities, and is foundational
to the ways in which the state writes itself as a protective, punitive, legaliz
ing entity. Feminists thus have little choice but to shape family law and
criminal law using the discourses of victimhood and protection to address
practical gender interests, even while cognizant of contradictions and
ironies that may arise in the process of decoding law in courts and cultural
settings. Alongside, they could strive to change material subordination in
marriage and the labor market, as well as work toward challenging signi
fiers of sexual difference as the basis of gendered law.
Continuing negotiations with the state are critical to this dialectic.
The state may inculcate the fundamental male/heterosexual prerogatives
identified by Brown in the opening epigraph, but it also must continue to
be regarded as being constituted through diverse political interests over
time. Struggles are thus an inevitable part of gaining any ground. The rape
cases discussed in here mark the discursive terrain of sexuality and

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
208 Srimati Basu

marriage, and by laying open their alliances, signal the ways in which
feminist theories can trouble law and their own place within it.

Notes

This research draws on my fieldwork in Kolkata in 2001 and 2

the Family Courts; the Women's Grievance Cell, associated
several other organizations that informally undertook mediati
to family law; and interviewed related personnel. The project s
of the Family Court and expanded to include an explorati
family violence.

1. My narrative of this situation is pieced together from sub

the media, such as "Buddha Rap on Academy Operation" an
Forced Entry," both in Telegraph (Kolkata, India), 16 and 15
Grievance Cell at Police headquarters in Kolkata; women's o
iated and independent) that dealt with violence against wo
work accounts.

2. See Srimati Basu, "Playing Off Courts: The Negotiation of Divorce and Violence in
Plural Legal Settings in Kolkata, India," Journal of Legal Pluralism 52 (2006): 41-75.
3. Legal Reporter, "Court Directs Actors to Patch Up: 'Rape' Case Adjourned till Feb.
7," Telegraph (Kolkata), 3 Feb. 2005. The circumstances of the rape charge were often
elided in newspaper accounts that relied on evoking a stereotypical rape rampage,
such as this sarcastic condemnation of police behavior of charging into the women's
changing rooms ("greenrooms"): "They may have thought that an actor charged
with rape rushes to the women's greenroom at every free moment to continue his
favorite activity, or, in all the excitement they had forgotten the gender of the
alleged rapist, or, they thought that he had hidden in the women's rooms. That is
what they would have done under similar circumstances, probably." See "Opinion
Life Chasing Art," Telegraph (Kolkata), City Page, 3 Feb. 2005.
4. Christine Helliwell, '"It's Only a Penis': Rape, Feminism, and Difference," Signs 25, no.
3(2000): 789-816.
5. Maria Barbara Watson-Franke, "A World in Which Women Move Freely without Fear
of Men: An Anthropological Perspective on Rape," Women's Studies International Forum 25,
no. 6 (2002): 599-606. The classic proponent of this argument is Peggy Sanday, in texts
such as her "Rape-Free versus Rape-Prone: How Culture Makes a Difference," in
Evolution, Gender, and Rape, ed. C.B. Travis (Cambridge: MIT Press, 2003), 337-62.
6. Section 375 of the Indian Penal Code defines rape, while 376 defines punishment for
rape. Nivedita Menon describes ongoing attempts at reform of sexual assault law in
"Sexual Violence: Escaping the Body," in Recovering Subversion: Feminist Politics beyond the
Law (New Delhi: Permanent Black, 2004), 106-65, 111-12. According to Menon (138),
draft proposals for reform in 1993 and 2000 have moved toward increasingly gender
inclusive language.

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
Srimati Basu 209

7. Vibhuti Patel, "Women's Liberation in India," New Left Review, no. 153 (September
October 1985): 75-86.
8. See "Report Confirms Marine Drive Rape," Times of India, 17 June 2005; Shefalee
Vasudev and Methil Renuka, "Sexual Crimes: Rape!" India Today, 9 Sept. 2002, 48; and
Raji Rajagopalan, "Sexual Abuse Reported in India," Herizons 18, no. 2 (2004): 13.
9. Vasudev and Renuka, "Sexual Crimes," 48. Although the judge ultimately dismissed
the case of the social worker citing improbability, the event became a prominent
platform for organizing against rape in the women's movement in India. "Stigma:
Rape Case Shocks Women in India," New Internationalist, no. 277 (1996): 5, provides one
of numerous accounts of the case. See "Islamic Village Council Orders Woman to
Marry Father-in-Law Who Raped Her," Off Our Backs 35, nos. 7-8 (2005): 5-6; "Probe
into Bihar Dalit Women's Rape," India-Asian News Service, 3 Sept. 2006, available online
at www.india-forums.com/news/national/1005-probe-into-bihar-dalit-women-rape.
htm; and Tanika Sarkar, "Semiotics of Terror: Muslim Children and Women in
Hindu Rashtra," Economic and Political Weekly 37, no. 28 (2002): 2872-76. R.S. Gupta is
quoted in Vasudev and Renuka, "Sexual Crimes," 48.
10. Catharine MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard Uni
versity Press, 1989), 172.
11. Helliwell, "It's Only a Penis," 812, 796-98.
12. Menon, "Sexual Violence," 141, 107.
13. Sharon Marcus, "Fighting Bodies, Fighting Words: A Theory and Politics of Rape
Prevention," in Feminists Theorize the Political, ed. Judith Butler and Joan W. Scott (New
York: Routledge, 1992), 387, 391.
14. Carine Mardorossian, "Toward a New Feminist Theory of Rape," Signs 27, no. 3 (2002):
748.

15. Vivek Deshpande, "'This is Justice,' Say His Victims," Indian Express, 16 Aug. 2004; Satish
Nandgaonkar, "The Day of the Furies," Telegraph (Kolkata), 22 Aug. 2004.
16. Menon, "Sexual Violence," 133.
17. Patricia Uberoi, "Hindu Marriage Law and the Judicial Construction of Sexuality," in
Feminist Terrains in Legal Domains: Interdisciplinary Essays on Women and Law in India, ed. Ratna
Kapur (New Delhi: Kali for Women, 1996), 184-209, provides vivid examples of
"ethnosexology" in judicial pronouncements. Also see Agnes Flavia, Law and Gender
Inequality: The Politics of Women's Rights in India (New Delhi: Oxford University Press, 2000);
Maitrayee Mukhopadhyay, Legally Dispossessed: Gender, Identity, and the Process of Law
(Calcutta: Stree, 1998); Srimati Basu, She Comes to Take Her Rights: Indian Women, Property,
and Propriety (Albany: State University of New York Press, 1999); Martha Fineman,
introduction to At the Boundaries of Law: Feminism and Legal Theory, ed. Martha Albertson
Fineman and Nancy Sweet Thomadsen (New York: Routledge, 1991); and Susan
Moller Okin, Justice, Gender, and the Family (New York: Basic Books, 1989), 166.
18. A registered marriage typically requires a month's advance notice. Bigamy is illegal
under the Hindu Marriage Act, and only the legal wife has any property/mainte
nance claims (although all children do).
19. Menon, "Sexual Violence," 124.

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
210 Srimati Basu

20. "Sentence Cut as Rapist Marries Victim," Hindu, 22 Jan. 2002.

21. See "Man Acquitted in Kidnap, Rape Case," Global News Wire, Hindu, 17 June 2005; and
"Rape-Accused Marries Victim in Orissa," Indo-Asian News Service, 28 July 2006.
22. Susan Estrich, "Rape," Yale Law Journal 95, no. 6 (1986): 1087-1184.
23. Vishnu v. State of Maharashtra, 1 Supreme Court Cases 283: 292 (2006).
24. Uday v. State of Karmtaka, 4 Supreme Court Cases (2003) 46,48.
25. "1 Will Not Marry Him! Hang Him: Rape Victim," Indo-Asian News Service, 4 May 2005;
"India: Woman Rejects Rapist's Marriage Bid," Off Our Backs 35, nos 5-6 (2005): 6-7.
26. "Back Out of Marriage at Own Risk," Global News Wire-Economic Times, 13 July 2003;
"Transporter's Fiancee Fears Threat to Life," Times of India, 28 Sept. 2005, Business and
Industry Section; "Sex on a Promise 'Equal to Rape,'" The Dominion Post (Wellington,
New Zealand), 25 Aug. 2003, 2. See Bodhisattwa Gautam v. Suhhra Chakraborty, 1 Supreme
Court Cases 490 (1996).
27. See Deelip Singh v. State of Bihar, 1 Supreme Court Cases 88: 90 (2005). In this case, the girl
claimed to have been in love with her neighbor but alleged that he raped her the first
time, then she continued to have sex with him because he promised marriage, until
she was pregnant and the man's family took him away. The court discounted
accounts of the first rape and the age as minor, and gave the man the benefit of the
doubt and found him liable only for breach of promise but said that "the act of the
accused left behind her a trail of misery, ignominy and trauma. The only solace is
that she married subsequently" (106). His fine was reduced because he had been in jail
for two years, was from a poor family with little land, and both parties had married
since the incident fifteen years ago, with the couple having two sons now.
28. Tsun-Yin Luo, '"Marrying My Rapist?!' The Cultural Trauma among Chinese Rape
Survivors," Gender and Society 14, no. 4 (2000): 583, 589-90.
29. Neeraj Mishra, "Knot Right," India Today, 24 Oct, 2005, 26. See Lalta Prasad v. State of M.P.,
4 Supreme Court Cases 193 (1979).
30. See Uberoi, "Hindu Marriage Law"; Flavia, Law and Gender Inequality, Basu, She Comes to
Take; and Fineman, introduction to At the Boundaries
31. Okin, Justice, Gender, Family, 138.
32. Clare Chambers, "Masculine Domination, Radical Feminism, and Change," Feminist
Theory 6, no. 3 (2005): 330.
33. Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988), 2, 172,
184.

34. Johanna Niemi-Kiesilainen, "The Reform of Sex Crime Law and the Gender-Neutral
Subject," in Nordic Equality at a Crossroads: Feminist Legal Studies Coping with Difference, ed.
Eva-Maria Svensson, Anu Pylkkanen, and Johanna Niemi-Kiesilainen (Burlington,
VT: Ashgate, 2004), 170.
35. Christine Keating, "Framing the Postcolonial Sexual Contract: Democracy, Frater
nalism, and State Authority in India," Hypatia 22, no. 4 (2007): 137. "Personal" law
codes pertain to family law, that is, marriage, adoption, custody, and guardianship
and inheritance. They vary for each religious community, and there is also a secular
option available for marriage law.

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms
Srimati Basu 211

36. Jacqueline Stevens, "On the Marriage Question," in Women Transforming Politics: An
Alternative Reader, ed. Cathy J. Cohen, Kathleen B. Jones, and Joan C. Tronto (New
York: New York University Press, 1997), 62-63, 66.
37. Wendy Brown, "Finding the Man in the State," Feminist Studies 18 (Spring 1992): 25.
38. Stevens, "Marriage Question," 69.
39. Rochona Majumdar, "Looking for Brides and Grooms: Ghataks, Matrimonials, and the
Marriage Market in Colonial Calcutta, circa 1875-1940," Journal of Asian Studies 63, no. 4
(2004): 911-35; Rachel Sturman, "Property and Attachments: Defining Autonomy
and the Claims of Family in Nineteenth-Century Western India," Comparative Studies in
Society and History 47, no. 3 (2005): 611-37; Mytheli Sreenivas, Wives, Widows, Concubines:
The Conjugal Family Ideal in Colonial India (Bloomington: Indiana University Press, 2008).
40. Wendy W. Williams, "The Equality Crisis: Some Reflections on Culture, Courts, and
Feminism," in The Second Wave: A Reader in Feminist Theory, ed. Linda Nicholson (New
York: Routledge, 1997), 77,84.
41. Carol Smart, Law, Crime, and Sexuality: Essays in Feminism (London: Sage, 1995), 86, 87.
42. Echoing activist Flavia Agnes, Menon argues that many progressive judgments have
in fact defined the terrain of rape law at least as much as legislation; see "Sexual
Violence," 123.
43. "Fast Track Justice," Times of India, 6 May 2005, 18; "Bihar Court Hands Out Rape
Verdict in Five Hours," Times of India, 20 Oct. 2006, 12; Monobina Gupta, "Rape Relief
within Weeks," Telegraph (Kolkata), 24 Oct. 2005: 1.
44. "Sex with Minor on Promise of Marriage Is Rape," Times of India, 3 Oct. 2006.
45. Dhananjay Mahapatra, "Rape Victim's Words Gospel Truth: SC," Times of India, 17
May 2006, 11. Menon, "Sexual Violence," 130, lays out some problematic ways in
which lack of corroboration is validated only in certain performances of femininity
allied with chastity. See "SC Tells Courts Not to Take Rape Cases Lightly," Hindustan
Times, 4 Oct. 2006, 6.
46. Stevens, "Marriage Question," 63.

This content downloaded from

111.93.136.226 on Fri, 05 Aug 2022 03:54:52 UTC
All use subject to https://about.jstor.org/terms