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

Because prerogative power appears to its subjects as not just thepower to violate but also the power to protect–quintessentially thepower of the police–it is quite difficult to challenge from a feministperspective. The prerogative of the state, whether expressed as theintervention of the police or as incessantly changing criteria forwelfare 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 tr iumph as feminists when rape (on the street, in the dorm, atwar) was recognized as violence (and not just a property violation), andstates enacted sanctions and protections against rape? For many of us whopetitioned and marched to demand remedies against sexual violence, itwas a feminist axiom to understand rape as an archetyped mark of patriar-chal dominance deeply resistant to legal accountability. Despite problemssuch as botched prosecutions or shamed silences or the intransigence oflaw, bringing recognition to sexual violence was indeed a symbolic success.However, the satisfaction of legal remedies is also eclipsed by the problemsof their very institution: the decoding and use of these laws in a variety ofsettings raises questions about meanings of violence and sex, agency, andconsent. Although it may be disconcerting to interrogate the terms of the

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Sexual Property: StagingRape and Marriage in

Indian Law and Feminist Theory

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fragile protections granted by laws against rape, I do so in this article not inan attempt to undo those gains but to examine the context of rape legisla-tion in systems of exchange, property, andmarriage.

Instead of locating rape legislation primarily under the rubric ofsexual violence, I examine its embeddedness in property and marriageregimes within systems of exchange and kinship. In particular, the legalterrain reflects sex as a form of property that allows women access to thematerial privileges of heteronormative conjugality and constructs reme-dies that seek to compensate or restore this order. Thus, protection fromthe state becomes problematic not only because of the ways in which itinscribes gender in terms of the capital of marriage, but also because themeaning of women’s sexual agency is mediated by hegemonic scripts ofsexuality validated in legal encounters, both civil and criminal. Thiscreates a dilemma for feminist jurisprudence: the choice between theoriesthat 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 performancein Kolkata (formerly Calcutta), India, in January 2004. Kolkata police gath-ered in the wings of the Academy of Fine Arts, waiting for the play Phataruto end, so that they could arrest actor Rudranil Ghosh on charges of rapebrought by fellow-actor Oindrila Chakraborty. The actor gave police theslip that night, but for the next few days the papers were full of referencesto the alleged rape, and an excited public discussed the mysterious circum-stances and the actor’s reputation.1 Ghosh and Chakraborty had beenromantically involved and cohabiting for a while; at the beginning of theirrelationship she had been going through a divorce but was now free tomarry and had brought the rape case on the grounds that Ghosh refusedto marry her despite his earlier willingness to do so. Chakraborty’s chargerelied on a body of case law where men who had sex with women by falselypromising 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 itleaked into my fieldwork spaces as well: the Women’s Grievance Cell ofthe Kolkata Police headquarters, one of my fieldwork sites, would have

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been the unit to which Ghosh was brought and hence was abuzz withexcitement. It appeared that the police felt some sympathy for Ghosh’sfugitive 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 ahigh-profile rape case. Their statements thus evoked and yet sought tomediate the allegations. The parties’ actor and journalist friends droppedin periodically over a couple of days to make inquiries; Ghosh called on afriend’s cell phone. In one of these telephone conversations, I heard apolice officer advise him that “once the case has became so public there isnot much we can do. Try to talk to your common friends and get her towithdraw the case or else make arrangements for bail. It’s a hot time for376 [rape] cases these days; there’s nothing the police can do” (Ajkal 376case-er gorom abhaoa cholchchey). A journalist friend of Ghosh’s came in tocheck with the officer shortly thereafter, saying they were trying to getfriends together to convince the couple to settle, or else “the lawyerswould get bloated over it for ten or twelve years” (naholey dosh-baro bochchordhorey ukiler pet phanpabey). Chakraborty’s one condition was marriage, sofriends were trying to see if they could arrange anything. Remarkably, inthe space of the Women’s Grievance Cell, the marital resolution of thisputative rape case echoed the more quotidian work of the cell, where alle-gations of domestic violence were evaluated and more often than notresolved through family mediation.2

The case galvanized public discussion about “appropriate” modes ofarrest: actors and artists wrote about destroying the “sanctity” of thetheater, and the chief minister spoke out against the “unbecoming con-duct” of the police in “storm[ing] the auditorium in order to arrest anactor [which] cannot be a policy of the government.” While the police putthe arrest on hold, Ghosh applied for anticipatory bail to avoid arrest, andthe High Court judge declared in the subsequent plea hearing that Ghoshand Chakraborty “should be able to settle their dispute through peacefuldiscussion” in five days: “Both of you are in the same profession and knoweach other. You should be able to sort out your differences throughdiscussions. The court should not interfere in the matter.”3 Followingthis, 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.


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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 toooften in the news, it created a frustrating representational problem. Inwomen’s organizations and feminist groups, there were many troubledconversations about how the case would affect rape prosecutions, aboutclass and uneven justice, and about the meaning of women’s agency. Someargued, in effect, that “one shady claim does not mean that other chargesof rape are fabricated as well,” not too subtly dismissing this rape charge asa misuse of law. This construction fit with the prevalent analysis fromwomen’s organizations (more often applied to Family Court prosecutions)that middle-class and elite women are sometimes able to manipulate thelaw to their advantage while poor women have scant access to legal reme-dies no matter what the legislation. Many commented on the opaquenessof the legal process and on the public’s lack of knowledge of Chakraborty’smotivations or of means to evaluate Ghosh’s alleged claims that he hadlost trust over time.

It was difficult not to feel irritated at the ways in which this apparentlyfeeble case was used in popular discussion to dismiss rape claims generallyor 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’serasure of her own sexual agency. But this hypervisible case also provided aglimpse into the links between rape, marriage, resource acquisition, shame,consent, and, ultimately, feminist organizing. This article examines theselinkages in recent rape cases in India to examine feminist theories of rape. Iargue for greater attention to the relationship between sexual violence andthe social contract of compulsory heterosexual marriage and examine thecircuits of property exchange within which rape is often encoded.

Rethinking Resistance:Discourse, Materiality, and Culture in RapeIn 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


biologically determined. Rather, cultural constructions of gender differ-ence, in particular the violence or victimhood assigned a priori to genderedcategories–as in classic feminist formulations of rape–constructed thepower 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 cultures5 but is difficult to reconcile withrecent accounts and patterns of rape in India. Further, it violates theformulations of rape as fundamental to patriarchal violence that havegirded feminist organizing in India (and elsewhere) since the 1980s.

Section 375 of the Indian Penal Code defines rape like many othersexual assault statutes: it specifies gender, rape being a man’s “sexualintercourse” with a woman6 “against her will,” “without her consent,” bythreat 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 gangrape and custodial rape. Indian feminist mobilization around questions ofrape is often linked to the 1979 Mathura case, where a fourteen-year-oldgirl’s rape by two constables was deemed by the Supreme Court to beconsensual based on her lack of injury and audible protest and allegedsexual experience.7 After long protest from lawyers, scholars, and activists,some legal changes were put into effect, notably the category of custodialrape where the presumption of guilt lies with custodial authorities. How-ever, custodial rape continues with impunity, such as the 2005 MarineDrive case where a constable raped a teenager out with her friends.Despite the putative legal deterrence of the above laws, statistics indicate asharp rise in the rate of reported rape even while other violent crimes,such as murder, robbery, and kidnapping, have declined. The IndianNational Crime Records Bureau statistics record 2,487 reported rapes in1971, the first year data were gathered; this increased to 10,068 in 1990 andto 18,233 in 2004. Estimates are that three-quarters of rapes are notreported.8 In the Women’s Grievance Cell at Kolkata Police headquarterswhere I visited, only five of thirty-three reported rape cases in 2002 werestranger rapes.

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Let it be abundantly clear that there is no dearth of stark violence inrecent accounts of rape in India. The following sample of recent cases fromvarious parts of India illustrates the ways in which rape is used for gender,caste, class, and religious domination and for marking public space orexerting political pressure, in a perfect coalescence of sex and violence.Two women in Delhi were gang-raped in August 2002; also that month amentally challenged twelve-year-old was raped on a suburban Mumbaitrain 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 ahighly controversial 2005 case, a woman named Imrana was told by a localMuslim cleric following her rape by her father-in-law that she should nowmarry him and treat her husband as a son, their marriage having beenannulled by the rape. Four Dalit (low-caste, so-called untouchable groups)women were raped by landed upper-caste men in a Bihar village for notvoting for a particular candidate in the panchayat (village-level) elections inAugust 2006. The 2002 Gujarat riots were notoriously marked by viciousrape-murders of Muslim women that underlined the use of sexualviolence to mark Hindu religious-nationalist domination, abetted by statepower. Delhi Police Commissioner R.S. Gupta famously opined, “Crimeagainst women will drop by 50 percent if they are careful in the way theydress, 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 spaceand appropriately gendered citizenship. In these scenarios, where the penisis emphatically used to humiliate, brand, and terrorize, it is easy to affirmCatharine MacKinnon’s assertion that “sexuality is central to women’sdefinition and forced sex is central to sexuality,” so “rape is indigenous, notexceptional, to women’s social condition.”10

But can rape be defined with such universalizing certitude, or is it,instead, an expression of a specific formulation of gender? Arguing againstthe alleged essentialism of radical feminist analyses that portray rape as thevisible example of patriarchal relations, Helliwell claims that “rape itselfproduces such experiences [‘of men’s genitalia and sexuality as inherentlybrutalizing and penetrative and women’s genitalia as inherently vulnera-ble and subject to brutalization’] and so inscribes sexual differences onto

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our bodies.” Helliwell locates rape as constitutive of the very definition ofgender and “sexual polarity” in particular cultural formulations”:

While it is certainly the case that rape is linked in contemporary Westernsocieties to disparities of power and status between men and women, it isthe particular discursive form that those disparities take–their elaborationin terms of the discourse of sex–that gives rape its particular meaning andpower in these contexts.11

Nivedita Menon also contends that both feminist and sexist analyses“mystif[y] ‘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 ofsexuality and that serve to inscribe the body in a given culture. The Indianexamples in the previous paragraph, while also pertaining to realms suchas urban public space, caste relations, religious interpretation, and crimi-nal justice systems, also enforce gendered power. They are self-consciousand self-perpetuating instantiations of using the penis to mark terror andsubjugation.

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 legaldeterrence and to address such discursive constitutions of sexual violenceand their effects on understandings of bodies and sexuality. SharonMarcus advocates foregrounding the discursiveness of rape and thenceundoing the power of the “gendered grammar of violence”: “A feministpolitics 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 oflanguage and for implicitly victim blaming by making fighting rape amatter of mental resistance. However, she is fundamentally arguing for achange in signifiers of violence and embodiment in ways that seem con-gruent with Helliwell’s argument in that she sees that “social structuresinscribe on men’s and women’s bodies embodied selves and psyches themisogynist inequalities which enable rape to occur.”13 Thus, feminist solu-


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tions could involve undermining inscriptions of body and language as away to defusing material effects.

Although Carine Mardorossian is one of Marcus’s critics, her ownargument may be read as complementing this perspective by bringingquestions of voice, experience, and possible empowerment to the discur-sive construction of violence. Mardorossian contends that “victim” is nota category beyond reparation and that forms of resistance and social trans-formation may be embedded in rape survivor narratives and subsequentorganizing. She propounds a “new theory of rape” that would “supple-ment feminist accounts of women’s experience with a contextual analysisof the ways in which experience is given meaning at a particular time andplace”; that is, it would attend both to cultural inscriptions of violence aswell as to voices of resistance.14

The accounts of rape in contemporary India at the beginning of thissection are a forceful reminder that the material bodies are used not justto harm or to deploy fear but also to influence the ways in which thebody, 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 underlinegendered power and vulnerability. Undermining the power of rape towound by highlighting its cultural constructions and the resistances ofsurvivors could thus be a useful solution that does not just rely on thescant protection of law enforcement.

Lest we drown in the seeming ubiquity of rape as violent power in theabove cases, an exemplar of embodied resistance comes from the womenof Kasturba Nagar. During the courtroom remand of Akku Yadav, whohad terrorized the town with his gang by raping numerous girls andwomen, maiming and murdering, extorting money, and walking on bailafter each arrest, these “ordinary slum-dwellers and daily wage-earners”stormed the courtroom, attacked, castrated, and killed him. The womendeclared 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’swife or daughter? So, we decided to do it ourselves.” Using a remarkablestrategy of plural culpability, scores of women claimed to have been the


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perpetrators; the police were unable to arrest any specific women for thecrime (and even alleged that some men did it and women were protectingthem).15 Although embedded in a horrific narrative of community terror,the Kasturba Nagar women’s actions indicate the retaliatory use of bodilyviolence not just to harm or kill but to transform the signifiers of victim-hood, class, and legal protection as well. They challenged the power ofrape through a collective, coordinated, visceral response that elides legalpunishment, in blatant mockery and rebuke of the law. Similarly, the rapeof activist Bhanwari Devi described above became a site where ideologies ofrape were consciously challenged by protest campaigns, such as in slogansthat 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 questioningwomen’s sexual agency and affirmative consent. But it does push us tolook beyond the body, to consider rape in terms beyond corporeal vio-lence. Her actions and the following cases gain meaning, I argue, when weconsider the social structures of marriage and the legalities throughwhich marriage is instituted. Feminist struggles to theorize sexual agencyand sexual victimization, equality and difference, are embedded in thesecontradictory legalities.

Marriage for Rape, Sex for CompensationWhile Chakraborty’s claim of rape is one of the most notorious rape casesin recent Kolkata history, it is hardly an aberration. During my fieldworkin the Family Courts of Kolkata and the Women’s Grievance Cell of theKolkata Police, I found that people routinely use multiple legal venues toplay off civil and criminal claims against each other and, in particular, tonegotiate the economic difficulties of divorce for women through lumpsum alimony and child support in the absence of a legal notion of jointmarital property. Allegations under Section 498 of the Indian Penal Code(encompassing domestic “torture”) are sometimes used to leverage bettermaintenance settlements or reconciliations. Ironically, the very invocationof this much-maligned provision taints the case for judges and policeundermining its stated intent of protection against domestic violence.


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Similarly, criminal law provisions for return of dowry are used as a proxyfor recovering matrimonial property, however little. In these cases, in theChakraborty rape case, and in the rape cases that follow, criminal lawprovisions that rely on essentialized notions of female victimization andfemale sexual passivity offer women protection, in the form of criminalsanctions by the state, while civil remedies offer few punitive solutionsagainst failures to providemaintenance or housing.

Women’s chances of deploying the criminal-sanctioning power of thestate vary depending on their class, caste, and religion. Judges and law en-forcement officials do not necessarily follow the feminist spirit of theselaws. 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 againstwomen as a fundamental expression of differences in power) and offerprotection. In contrast, civil marriage law is more gender neutral on itsface, although it ultimately reinforces male economic and social power.Scholars of gender and law in India have demonstrated the inequities ofmarriage law in a variety of settings, echoing classic formulations such asMartha Fineman’s analysis of economic vulnerabilities generated throughthe social categories defined in marriage. Similarly, Susan Moller Okinargues that divorce law both reflects and creates economic disparities: “Byattempting to treat men and women as equals at the end of marriage,current divorce law neglects not only the obvious fact that women are notthe socioeconomic equals of men in our society, but also the highly rele-vant fact that the experience of gendered marriage and primary parentinggreatly exacerbates the inequality that women already bring with theminto marriage.”17 Given the limited “civility” of equal marriage, criminallaw can be used as a form of leverage.

A few recent cases illustrate the interaction of the laws governing rapeand marriage, particularly the ways in which one entity works in theshadow of the other. The first example is drawn frommy fieldwork at theWomen’s Grievance Cell. A large man wearing a fancy suit and goldjewelry 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, asnarrated by some officers after his departure, was that he claimed to be in


media/film and to have been set up by a gangster group that drugged himand then entrapped him with a woman who was, presumably, a profes-sional extortionist. Unaccountably, he continued to be involved with thegroup, as well as the woman. He had set the woman up in a flat, had achild 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 notquit this relationship. Suparna had threatened to file a §376 (rape) case onthe grounds that he went through a formal bigamous marriage with thefull knowledge that it was invalid and hence fraudulent, thereby continu-ing a sexual relationship with her under circumstances she would nothave 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 eachframed their claims with a tidy strategy: his best recourse was to usepersuasion and/or his ample financial resources to extricate himself. Aswith Chakraborty’s case, here rape is evoked in the context of a long-termcohabitation by a woman who is not claiming a violation of chastity nor issolely dependent on marriage for economic sustenance. Regarding a simi-lar case, Menon opines that a woman may be “cheated and exploited” insuch situations, but “if as feminists we were to see it as rape, we would beparticipating in a discourse that sets up sex as legitimate only within theframework of marriage.”19 Yet although this case evokes uneasiness aboutrecognizing female sexual agency and measuring respectability throughsocial 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 inwhich rape prosecutions invoke marriage as putative solutions. They un-derline the stature of rape as sex rather than violence. But they also depictrape as a violation of property, to be made whole by restoring the womanto the marital state to which she was entitled when exposed to sex. As thefollowing cases show, marriage is the form of property synechdocally atstake in rape. In these cases, a marriage proposal or relationship serves asthe 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

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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 thevictim cannot be erased from her memory but the evidence on recorddoes indicate to a certain extent that the appellant and the victim were inlove.”20 Similarly, in 2005, a Delhi court acquitted Kanhu Panda of rapeand kidnapping (originally charges were filed against him and three of hisfriends for gang rape) when letters from the woman and pictures of theirwedding ceremony were presented: the judge commented that “if onegoes through these letters, there remains no doubt that the prosecutrixwas deeply involved with the accused”; her pictures in wedding attireserved as evidence to prove that she did not marry under coercion. Panda“expressed his desire to marry the victim despite belonging to a differentcaste” and was granted bail in order to marry at the Bhadrak templewhere “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 wifewill withdraw the case against him and look[ing] forward to a married lifeoutside jail.”21 Remarkably, evidence of consent often appears visuallyrather than orally in these appellate judgments (old love notes, weddingpictures), validating past or future relationships rather than the time andcontext of the sexual act at issue. This has the effect of erasing violencefrom 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 Courtreduced rape charges on a variety of exculpatory grounds that invokedthe motivation of defendants (mens rea). This inverts the common criminaltrial procedure wherein the raped woman’s state of mind is at the core ofthe argument, as Susan Estrich argues for U.S. law.22 In these cases, thequestion of women’s motivation becomes almost invisible, except byproxy in filing the charges. These exculpations included several examplesof the accused being “an illiterate laborer from a rural area,” connotingrape as an urban phenomenon related to confusion of values over sexual-ity and public space, and signaling feminist insistence on legal sanctionsagainst rape as an urban value incomprehensible to those ensconced inlocal understandings of male sexual privilege.


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Recent case law in which the courts squarely address questions offemale sexual desire also demonstrate the practical pitfalls of highlightingpossible sexual agency. In the 2006 case, Vishnu v. State of Maharashtra,23 hailedas a landmark judgment because the rapist was convicted on the sole testi-mony of the “prosecutrix” (accuser), the court marked its decision as onesaturated within deeply gendered understandings of shame and chastity:

The statement of the prosecutrix, in our view, is quite natural. . . . In thetraditional non-permissive bounds of society in India, no girl or woman ofself-respect or dignity would depose falsely, implicating somebody ofravishing her chastity by sacrificing and jeopardizing her future prospect ofgetting married with a suitable match. . . . [This] also would invite thewrath of being ostracized and cast out from the society she belongs to andalso from her family circle.

This “prosecutrix” may receive the benefit of the doubt because she wasseen as innocent and virginal; however, women not perceived to embodyperfect chastity or class privilege would not, by implication, warrant thesame protection. In contrast, a more complex notion of women’s sexualagency 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 courtdetermined that the question of marriage was not a false promise becausethe 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.”24

The ascription of sexual agency to the woman was, not surprisingly, toher legal disadvantage. This raises the question of whether this case shouldbe commended for its equitable recognition of women’s sexual passion orcondemned as a slippery new pathway for dismissing rape charges byputting 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, whoworked as a ward boy at a hospital, raped a nurse, gouged out her righteye and severely injured the left, locked her up and left her for dead. Butin 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, theconvict, from the core of his heart, without prejudice to the merits of the


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case, is ready to perform marriage with the victim.” The nurse vocifer-ously responded that her assailant should be accorded the maximumpunishment instead or even hanged; feminist organizations berated thejudge for even admitting this application, noting that “the court shouldnot 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 ofreward that a man with the worst of prospects has the power to grant.How could we not believe in genuine repentance and integrity if marriagewas on offer?

The obverse of the court’s implied support of marriage offers in rapecases is the punitive zeal directed at men who got sex by promising futuremarriage. “Back Out of Marriage at Own Risk,” the Economic Times headlineproclaims: the public prosecutor charged Kalipada Garu with “exploit[ing]the poverty and physical disability” of a woman who “had been lured byfalse promises of a happy married life and agreed to sleep with him” andwho had filed charges upon learning he had married someone else afterthey spent many weekends at tourist hotels. In 2005, a Nagpur woman fileda case of rape against a Delhi man she had met after placing an Internetmatrimonial ad, citing his lies about his life and the abortion he had forcedon her. A Hooghly (West Bengal) judge sentenced a man to seven years inprison, contending that the false promise to marry was “tantamount torape” and that the punishment would “ensure ‘that no one in future daresto cheat innocent girls.’” In the 1996 case, Bodhisattwa Gautam v. SubhraChakraborty,26 Chakraborty was awarded a compensation payment for rapeon the basis of false promise of marriage, particularly because the man hadput 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 beenrefined. The 2005 case Deelip Singh v. State of Bihar is one of the most recent toset the standard that “consent given by a woman believing the man’spromise to marry her would fall within the expression ‘without herconsent’ only if it established that from the very inception the man neverreally intended to marry her and the promise was a mere hoax.”27 Againthis returns to the mens rea of defendants and to the social circumstances of


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the case, prosecuting rape using standards of fraud rather than invokinglegal definitions of sexual violence.

Tsun-Yin Luo’s study of suggestions to marry rapists in contemporaryTaiwan maps ideological similarities in gender formations in a very differ-ent socioeconomic milieu than India’s. Luo contends that the “culturalfetish for female virginity or chastity,” combined “with the institutionalemphasis on the sexual component of rape, contributes to a distinctcultural construction of rape in Chinese society” and “manifest[s] itself ina socially sanctioned connection between rape andmarriage.” In the midstof reporting worries about fear of disclosure, loss of virginity, guilt andblame, some of her respondents reported that they did get offers of mar-riage that were designed to mark the rapists’ commitment to them or tosettle legal issues, that there was widespread social and legal endorsementof the offer, and that they entertained the offers as strategies to save theirbusiness and reputation, and, in one case, to get foreign residence.28 Luoargues, however, that these acceptances reinforce the virginity fetish andthe sexualization of rape and worsen resulting trauma among survivorswho refused to comply. As with the Indian cases, these strategies do notstrengthen survivors’ sense of sexual agency, and they heighten ratherthan ameliorate the status of rape within patriarchal relations.

It is obviously impossible to discern the harm or violation of rapesurvivors from the legal framing in the Indian cases or to determinewhether their families had coerced them into a certain legal strategy. InOctober 2005, the Delhi High Court enraged women’s groups by declaringthe validity of the marriages of two 16-year-olds (who are legally deemedincapable of sexual consent) who claimed their husbands were beingfalsely accused of kidnapping and rape and who sought to escape the insti-tutional homes where they were being held. That case, and another whereit was held that the woman was neither underage nor kidnapped but hadbeen betrothed to the accused and a false statement in her name had beenprovided 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 kidnappingand rape charges against the eloping men. Public knowledge of sexualviolence appears to be less stigmatizing in this case than the possibility of a


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permanently transgressive marriage; the marriage, here, is not allowableas property and therefore rape must serve as residue. Legal protectionsagainst rape then serve to solidify caste and religious hegemonies and torender women’s choices moot.

Both scenarios–cases where the damage of the alleged rape is soughtto be made whole through reference to prior acquaintance or post-eventmarriage and cases where any promise to marry constitutes a contract tothe property represented by the woman’s sexuality–invoke very differentmeanings of rape than those envisioned in radical feminist analyses. Butthey rely on a related notion, that rape is a patriarchal violation broachingwomen’s vulnerable sexuality, and sex is a form of rape given women’slack of choices in a hostile ideological system. There is no discursive spaceto distinguish between sexual activity and rape other than through theshadow of marriage, which acts as the proxy for consent and future secu-rity. To apply Helliwell’s formulation, the “marriage promise” scenario isculturally specific to these Indian (and Taiwanese) cases rather than anexpression of universal gender structure. It manifests particularities of thatsex-gender system, where kinship structures, labor patterns, and propertyregimes 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 thatthreatens access to these benefits.

The Violence of MarriageOf course, feminist theory cannot envision marriage as a solution, how-ever strategic, to rape. Marriage and its associated regimes of property andsexual control have been cast as the lynchpin of patriarchal relations as farback as the early-nineteenth century among utopian socialists. This bodyof feminist literature, which locates labor, reproduction, and sexual accessin marriage at the core of consolidation of patriarchal relations and citesmarriage law as inscribing gendered heterosexual subordination underthe sign of economic and moral protection, is critical to evaluating thegendered codes through which rape prosecutions and marital protectionare purveyed.


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Scholars of family and law have documented the inequalities ofmarriage as a legal institution in South Asia and other settings.30 Theirexamples illustrate Okin’s formulation that “gender-structured marriageinvolves women in a cycle of socially caused and distinctly asymmetricvulnerability” and that contemporary women (in the United States) “aremade vulnerable by marriage itself.”31 Clare Chambers argues that struc-tures of inequality express themselves discursively through the very ideasof sexuality that undergird marriage regimes, noting that “this patriarchalform 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 fantasyas it is the source of rape, abuse and distress.”32 Marriage thus works hege-monically through seeming pleasure and consent to solidify materialsubordination, setting the norms of consensual behavior in other domains.

Such socioeconomic difference constituted through sex and marriageis provocatively attributed by Carole Pateman to the very institution ofheterosexual, patriarchal marriage as an inherently inequitable contractin her assertion that “men’s domination over women, and the right ofmen to enjoy equal sexual access to women, is at issue in the making ofthe original pact. The social contract is a story of freedom; the sexualcontract is a story of subjugation.” The marriage contract, in her reading,is the only contract women are permitted to participate in, but they haveno parity in the process: “Only the marriage contract can turn use ofsexual property . . . into the use of a person. But it is the husband who hasuse of a person, not the wife.” Pateman argues that the invisibility of thesexual 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 contractualnegotiation, including any legal conceptions of equity, without undoingthe 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 thinkingabout the ways in which rape and marriage are linked as forms of sexual


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property. Men’s relationship to marriage in these cases is one of eithershirking full value or paying up on such property, and women embodyforms of property while needing to claim marriage as the seemingly soleform of socioeconomic sustenance. Marital rape is a categorical impossibil-ity in this scheme. Pateman’s model fits most blatantly with early rapelaw, such as that identified by Johanna Niemi-Kiesiläinen in the context ofNordic 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 othermale relatives, to arrange a maiden’s marriage by making the seduction ofan unmarried girl a crime.”34

Contemporary rape laws may seem very different because they high-light sexual violation, but when that violation is understood as precludingfutures in which marriage is critical to opening up the primary means ofeconomic sustenance, then the linkages that Pateman identifies underliethe law. The very notion of consent is dubious because it appears to bemore concerned with what is defined as legal sex rather than withconsent to sexual participation, validating Pateman’s contention thatwomen in this context are unable to be full participants in a socialcontract of full and free exchange given their primary affiliation in termsof the sexual contract. Christine Keating argues that the “postcolonialcontract” in India is a more sophisticated version of Pateman’s notion thatthe social contract continues to subsume the sexual contract, in that itstraddles discourses of equity as well as negotiations with the hegemonic“racialized fraternal democratic order.” Because “fraternal solidarity [andthe notion of a homogeneous political sphere] depended on the preserva-tion of control over women in the family,” the Indian ConstituentAssembly produced a postcolonial legal code where gender equality wasasserted as a fundamental right in the constitution but was underminedby systems of “Personal” law governing families which retained blatantlegal subordination.35

The state looms large here as the entity that sanctions marriage withparticular statuses and socioeconomic entitlements. Jacqueline Stevenslooks 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


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not have sex-specific requirements for the duties of ‘husband’ and ‘wife’. . .. The state actively participates in establishing the distinction between whatis 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 NancyCott’s assertion that “the institution of marriage and the modern statehave been mutually constitutive” by demonstrating the ways in which thestate sanctions “terms of legitimacy,” “form[s] of kinship relations,” andhence the premises of full citizenship.36 Wendy Brown characterizes thestate somewhat differently as acting to inscribe the family as a prepoliticaldomain beyond direct intervention but starkly shaping sociopolitical rela-tions as a result, thereby “operat[ing] as an insignia of the extent to whichpolitics between men are always already also the politics of exchanging,violating, protecting and dominating women; the one constitutes theimperatives of the other.”37 Rape, in this formulation, interrupts thepatterns through which circuits of kinship are to be rendered sacred andthereby evokes the wrath of the state by striking at its foundational value;norms of kinship are restored through state-sanctioned legal categories forwhich marriage is the conduit. However, because, as Stevens notes, “theapparent equality of the political statuses ‘husband’ and ‘wife’ actuallyobscures an underlying dynamic that continues to render marriage a siteof gendered political inequality,”38 marriage per se is scant compensationeven 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 mutuallybeneficial. It bears noting that the separation between these two terms,however, has been deemed by historians of South Asia to be a critical axisof the emergence of modernities: notions such as the rise of the individ-ual legal subject interpellated by market forces and conjugal intimacywithin the safe haven of the nuclear family emerged in nationalistdiscourse, pushing against the dominant needs of the extended familtyand affecting the milieu within which postcolonial marriage law (center-ing on the couple) was constructed.39 Still, these historians assert, thesenew subjectivities existed alongside conservative patriarchal formulations


of kinship. In any case, “modern” ideas of conjugal equality did not alterthe status of marriage as the path to women’s property.

Seeing marriage as an axis for instituting and sheltering genderedsubordination, even while granting legal privileges, is critical to under-standing the rape cases analyzed here. In the state sanctions of marriage torapists and the use of rape law as a tool to punish defaulters to marriage, aswell as in the attempts of Oindrila Chakraborty and Suparna to make sexcriminal unless it was converted to marriage, we see both the privilegedstatus conferred by marriage, as well as the irony of a legal strategy thatseeks out a category of subordination (which is also “protection”). Toreturn to Helliwell and Marcus’s suggestions that we challenge discursiveconstructions of rape and their embeddedness in gender norms by alteringthe power of signifiers, invocations of marriage in the shadow of rape aresingularly ineffective in transforming valences of sexual passivity or socioe-conomic dependence; they reinscribe victimhood even as marriage offersforms of redress.

Beyond Legal ProtectionFeminist activists and scholars have struggled for decades to have sexualviolence be recognized within law as a transgression of bodily integrity andsubjectivity, given the power of law in the modern nation-state to consti-tute safety and sexuality. But they have had to do so by utilizing existentsignifiers of gender even as they attempt to transformmeanings of gender,in the process reinscribing some of the very meanings they challenge. Thedilemma, then, is the terrifying one of stepping outside the “protection”afforded by law (and the ideologies of “sexual contract” through which itis constituted) to an imagined space of alterity/equity. Wendy W. Williamspinpoints the problem in the course of debating the use of “sameness”versus “difference” arguments in U.S. gender discrimination cases:

Should we . . . defend traditional rape laws on the ground that rape,defined by law as penetration by the penis of the vagina, is a sexual offencethe psychological and social consequences of which are so unique, severeand rooted in age-old power relationships between the sexes that a gender-neutral law would fail in important ways to deal with the world as it reallyis? Or should we insist that equality theory requires that we reorganize our

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understanding of sexual crime . . . and that legislation which defines sexualoffenses in gender-neutral terms, because it resists our segregationist urges,and affirms our common humanity, is therefore what feminists shouldsupport?

“Do we want equality of the sexes–or do we want justice for two kinds ofhuman beings who are fundamentally different?”40 Williams asks, echoingHelliwell’s contention that law itself makes sexual difference salient.While Williams leans to the “equality” side of the question, arguing thatthat is ultimately more beneficent for the symbolic inscription of genderwithin law, the way in which she poses the argument drives home thepotential incompatibility between these two views. Carol Smart, tracing asimilar dichotomy in feminist discourses on rape law between liberal,gender-blind, rights-based approaches and that of moral outrage andprotection, emphasizes the irony that both positions can be successfullyargued but that they “shared with legal discourse the construction ofwoman 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 eternalvictim, 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 thereal fear that law will snatch back the minimal protection it offers. . . . Afeminist discourse which might attempt to construct rape differently,which might attempt to deconstruct the biological/sexed woman, issilenced by the apparition of law’s sexed woman to whose survival it is un-willingly tied.”41

Can we afford to critique the essentialist bases of rape legislation and theirconstruction of the gendered body, when feminist movements haveworked so hard to seek legal recognition of rape as an act of violenceworking through social categories of sex? Can protection ever alter theterms of power? Yet the related question is, can we live with marriage as aform of compensation for rape claims or indeed with marriage as any kindof 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


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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 ofjuridical 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 sexand legality involved in cases of rape and marriage; the ways in which thelegal norms in these two categories are balanced in mutual translationindicates the ways in which they jointly structure sexuality, property, andreproduction. The fact that class position might allow one to manipulatethe gendered category of rape underlines the complex interactions of race,class, or caste with gender in the construction of legal subjectivity. Maritalremedies for rape thus solidify rather than transform the hegemonicinscription of marriage and sexuality.

Some recent legal decisions in South Asia have been hailed as finallyrecognizing the seriousness of issues feminists have campaigned against fordecades,42 because they have underlined rape as heinous, women as ruinedby rape, and rape prosecution as meriting ultimate swiftness and punitivepower. Marital rape has been taken notice of in a 2004 Nepal SupremeCourt judgment. Pakistan’s Hudood ordinances that severely punish rapevictims if the rape cannot be confirmed by four male eye-witnesses or bythe perpetrator’s confession are the subject of vigorous conversation, ifdisappointing political negotiation. In 2002, the Karnataka governmentplanned to launch legislation to deny government jobs to rapists, in a showof public sympathy. A Jodhpur fast-track court created legal history bycompleting a rape trial and handing out convictions to twomen for rapinga German tourist in May 2005. A Bihar court handed out a rape convictionin five hours in 2006. DNA tests are now mandatory in all rape cases. TheIndian National Commission for Women is putting together a program toprovide women with Rs 20,000 shortly after a rape, and with Rs 200,000 ifthe rape is proved, plus legal aid, protection during trial, and medical andpsychological help.43 The Times of India reported in 2006 that the SupremeCourt had “a major verdict scripting a fresh chapter on what is seen as adevice to secure ‘consent’ for sex,” pronouncing that “those who lure


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impressionable girls into sexual relationship [sic] with false promises ofmarriage are guilty of rape.”44 In another dramatic decision, “the SupremeCourt 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 theirfamilies; it had earlier urged lower courts to use their power for reducingsentences sparingly.45 These decisions cast the state as progressive and civilsociety as engaged in negotiation, active in addressing women’s sexualexploitation, 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 inthis politically felicitous arena. However, the nature of the reforms alsosignals that rape legislation and policy “beneficial to women” can providelittle more than victim-sensitive sops when the structure of sexuality,marriage, and property through which such reform is constituted is notchallenged in the process, nor any discursive realignments established.

“Law,” Stevens asserts, “constitutes marriage. It does not passivelyreflect or regulate preexisting marriage norms. Unlike most other laws,marriage law is . . . ‘performative.’”46 The terrain of rape law explored inthis article indicates that it too is constituted in articulation with marriagelaw, is similarly performative in shaping subjectivities, and is foundationalto 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 andcriminal law using the discourses of victimhood and protection to addresspractical gender interests, even while cognizant of contradictions andironies that may arise in the process of decoding law in courts and culturalsettings. Alongside, they could strive to change material subordination inmarriage 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 prerogativesidentified by Brown in the opening epigraph, but it also must continue tobe regarded as being constituted through diverse political interests overtime. Struggles are thus an inevitable part of gaining any ground. The rapecases discussed in here mark the discursive terrain of sexuality and


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

N o t e sThis research draws on my fieldwork in Kolkata in 2001 and 2004-2005 where I observedthe Family Courts; the Women’s Grievance Cell, associated with the Kolkata Police;several other organizations that informally undertook mediation and counseling relatedto family law; and interviewed related personnel. The project started as an ethnographyof the Family Court and expanded to include an exploration of the management offamily violence.

1. My narrative of this situation is pieced together from subsequent scant accounts inthe media, such as “Buddha Rap on Academy Operation” and “Stage Bloc Flays CopForced Entry,” both in Telegraph (Kolkata, India), 16 and 15 Jan. 2005; the Women’sGrievance Cell at Police headquarters in Kolkata; women’s organizations (party-affil-iated and independent) that dealt with violence against women; and from my field-work accounts.

2. See Srimati Basu, “Playing Off Courts: The Negotiation of Divorce and Violence inPlural 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 oftenelided in newspaper accounts that relied on evoking a stereotypical rape rampage,such as this sarcastic condemnation of police behavior of charging into the women’schanging rooms (“greenrooms”): “They may have thought that an actor chargedwith rape rushes to the women’s greenroom at every free moment to continue hisfavorite activity, or, in all the excitement they had forgotten the gender of thealleged rapist, or, they thought that he had hidden in the women’s rooms. That iswhat 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 Fearof 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 textssuch as her “Rape-Free versus Rape-Prone: How Culture Makes a Difference,” inEvolution, 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 forrape. Nivedita Menon describes ongoing attempts at reform of sexual assault law in“Sexual Violence: Escaping the Body,” in Recovering Subversion: Feminist Politics beyond theLaw (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.


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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; ShefaleeVasudev and Methil Renuka, “Sexual Crimes: Rape!” India Today, 9 Sept. 2002, 48; andRaji Rajagopalan, “Sexual Abuse Reported in India,”Herizons 18, no. 2 (2004): 13.

9. Vasudev and Renuka, “Sexual Crimes,” 48. Although the judge ultimately dismissedthe case of the social worker citing improbability, the event became a prominentplatform 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 oneof numerous accounts of the case. See “Islamic Village Council Orders Woman toMarry Father-in-Law Who Raped Her,” Off Our Backs 35, nos. 7-8 (2005): 5-6; “Probeinto Bihar Dalit Women’s Rape,” India-Asian News Service, 3 Sept. 2006, available onlineat www.india-forums.com/news/national/1005-probe-into-bihar-dalit-women-rape.htm; and Tanika Sarkar, “Semiotics of Terror: Muslim Children and Women inHindu Rashtra,” Economic and Political Weekly 37, no. 28 (2002): 2872-76. R.S. Gupta isquoted 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 (NewYork: 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; SatishNandgaonkar, “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. RatnaKapur (New Delhi: Kali for Women, 1996), 184-209, provides vivid examples of“ethnosexology” in judicial pronouncements. Also see Agnes Flavia, Law and GenderInequality: 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 AlbertsonFineman and Nancy Sweet Thomadsen (New York: Routledge, 1991); and SusanMoller 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 illegalunder the Hindu Marriage Act, and only the legal wife has any property/mainte-nance claims (although all children do).

19. Menon, “Sexual Violence,” 124.


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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 Karnataka, 4 Supreme Court Cases (2003) 46, 48.25. “I 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 Fiancée Fears Threat to Life,” Times of India, 28 Sept. 2005, Business andIndustry Section; “Sex on a Promise ‘Equal to Rape,’” The Dominion Post (Wellington,New Zealand), 25 Aug. 2003, 2. See Bodhisattwa Gautam v. Subhra Chakraborty, 1 SupremeCourt Cases 490 (1996).

27. See Deelip Singh v. State of Bihar, 1 Supreme Court Cases 88: 90 (2005). In this case, the girlclaimed to have been in love with her neighbor but alleged that he raped her the firsttime, then she continued to have sex with him because he promised marriage, untilshe was pregnant and the man’s family took him away. The court discountedaccounts of the first rape and the age as minor, and gave the man the benefit of thedoubt and found him liable only for breach of promise but said that “the act of theaccused left behind her a trail of misery, ignominy and trauma. The only solace isthat she married subsequently” (106). His fine was reduced because he had been in jailfor two years, was from a poor family with little land, and both parties had marriedsince the incident fifteen years ago, with the couple having two sons now.

28. Tsun-Yin Luo, “‘Marrying My Rapist?!’ The Cultural Trauma among Chinese RapeSurvivors,” 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 toTake; 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-Kiesiläinen, “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 Pylkkänen, and Johanna Niemi-Kiesiläinen (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” lawcodes pertain to family law, that is, marriage, adoption, custody, and guardianshipand inheritance. They vary for each religious community, and there is also a secularoption available for marriage law.


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36. Jacqueline Stevens, “On the Marriage Question,” in Women Transforming Politics: AnAlternative Reader, ed. Cathy J. Cohen, Kathleen B. Jones, and Joan C. Tronto (NewYork: 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 Autonomyand the Claims of Family in Nineteenth-Century Western India,” Comparative Studies inSociety 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, andFeminism,” in The Second Wave: A Reader in Feminist Theory, ed. Linda Nicholson (NewYork: 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 “SexualViolence,” 123.

43. “Fast Track Justice,” Times of India, 6 May 2005, 18; “Bihar Court Hands Out RapeVerdict in Five Hours,” Times of India, 20 Oct. 2006, 12; Monobina Gupta, “Rape Reliefwithin 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 inwhich lack of corroboration is validated only in certain performances of femininityallied with chastity. See “SC Tells Courts Not to Take Rape Cases Lightly,” HindustanTimes, 4 Oct. 2006, 6.

46. Stevens, “Marriage Question,” 63.


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

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