Marital rape refers to a sexual interaction by a husband with his wife, against or without her consent. If a couple is lawfully wedded and the age of the wife is more than 15 years, then the husband can coerce his wife into sex. In short, marital rape is a form of rape allowed by law. More than two-thirds of married women in India have been forced into sexual activity, says a UN report. This raises some pertinent questions for Indian society.
Does a woman’s consent for marriage mean sacrificing her right to say ‘no’? Can women raped by their own husbands have no redressal in the court of law? Can we afford to remain silent on such daily assaults on Indian women? The ongoing fight to criminalize marital rape seeks answers to these questions.
Marital Rape: The Legal Story So Far
Marital rape is mentioned in Section 375 of the Indian Penal Code (IPC). Exception 2 of Section 375 says- that the rape of a wife by her own husband is not a crime. The roots of this provision are found in two doctrines of the British colonial era. The first doctrine was given by Matthew Hale, the Chief Justice of King’s Bench. The Hale’s Doctrine said:
“Husband can’t be guilty of rape. By their mutual matrimonial consent and contract the wife
– Hale’s Doctrine
has given up herself in this kind to the husband”.
The second Victorian doctrine that influenced marital rape immunity is the ‘Doctrine of Coverture’.
According to this doctrine, a woman had no independent legal identity of her own after marriage. Her identity was merged with that of her husband and all her property was passed on to him. Section 375 of IPC (1870), heavily influenced by these doctrines, continues to work on such ‘weaker sex’ notions of women.
No wonder, the continued existence of this provision in the 21st century is being challenged from all sides!
- A batch of petitions is being heard in the Delhi High Court for declaring marital rape as a crime. The PILs were filed by the NGO RIT Foundation, All India Democratic Women’s Association, and 2 other individuals in 2015.
- Justice Verma Committee, formed after the draconian Nirbhaya Case (2012) recommended making marital rape a criminal offence.
- At the international level, the UN Convention on Elimination of Violence Against Women (UN CEDAW) also suggested that India should criminalize marital rape.
- More recently, the Kerala High Court allowed ‘marital rape’ as a valid ground for
divorce.
The combined message of these efforts is to assert that women have an identity and agency of their own. Being in a marital relationship can not be used as a cover to violate the same.
Reasons why marital rape should be criminalized in India:
More than 100 countries around the globe have criminalized marital rape. And yet this social evil continues to enjoy legal immunity in India!
There are plenty of reasons why this immunity requires a relook today:
Violation of Fundamental Rights
Marital rape is a direct assault on women’s right to life with dignity (Article 21). Forcing a woman for sex and inflicting violence on her, is a blatant breach of her dignity. It is also a cruel suppression of her dissent.
Marital rape also violates the right to equality enshrined under Article 14. The notion that consent for marriage denotes ‘consent in perpetuity’, imposes undue coercion on women.
Inconsistency in Law
Recently, in the Chhattisgarh High Court, a wife framed multiple charges against her husband. This included charges under Section 376 (rape), Section 377 (carnal intercourse against the law of nature), and Section 498A ( domestic violence).
The Court bound by law had to dismiss the husband on the ground of Exception 2 to Section 375.
This highlighted a major inconsistency in the law.
Domestic abuse of the wife is a punishable offence under Section 498A and the Domestic Violence Act of 2005. However, similar physical harm caused through sexual assault enjoys legal immunity.
Another inconsistent provision is that a man can rape his wife if she is aged 15 years or more. This stands contrary to the laws on child marriage and child abuse.
In fact, this provision is a naked endorsement of the existence of such social evils in India.
Impact on women’s health and psychology
Cases of marital rape are mostly driven by the husband’s low self-esteem, unemployment, urge to assert power, alcoholism, etc. Violence borne out of such angst can inflict unthinkable and long-lasting impacts on victim women.
Paul Bart rightly remarks here:
– Paul Bart
“Rape is a power trip, not a passion trip”
Marital rape causes immense physical pain as it is nothing but a sexual assault. In fact, the pain of repeated abortions, poor reproductive health, and even miscarriages that victims may go through are inexpressible.
Even if the physical wounds get healed, the mental trauma can haunt the victim for a lifetime. Victims often slip into clinical depression, post-traumatic stress disorder (PTSD), anxiety, fear, and vicious cycles of guilt. Children in the family also get bruised for life with such incidents.
Misogynist presumptions
One common assumption in society is- a woman’s duty, an obligation if you may, to keep her man happy. It is because of this assumption that women do not even consider it a problem if they are mistreated for sex.
The second assumption has formed over generations. It believes that women need to be ‘straightened’ by their husbands. In other words, the idea of ‘wife the wife’.
It is because of such deeply ingrained myths that marital rape is socially as well as legally accepted in India. In fact, they are considered so natural that the victims do not even feel the need to report the matter.
Image of India to the World
The marital rape immunity is not just degrading India from within but also costing us on the global front. It projects a very orthodox and backward image of India. Indian government’s consistent defence for continuing this legal immunity further impacts the country’s perception.
Our country is on the list of 36 infamous countries including Pakistan, Afghanistan, Nigeria, etc. that haven’t criminalized marital rape. This goes against the image of a progressive gender-just nation that India wants to portray to the world.
Government’s Stance
Today people are more aware of the atrocities associated with marital rape. Despite this, the government of India has shown repeated reluctance in criminalizing it.
Venkaiah Naidu recently said that “the entire family system will be under great stress should marital rape is criminalized.”
In the Independent Thought v. Union of India Case (2017) also, the government defended the
marital rape exception.
The government argued that criminalizing marital rape is ‘against the institution of marriage. It is against Indian culture and will destabilize the whole institution of marriage.
However, the judgment by the Honourable Supreme Court in the case cleared the mist of misogyny hovering over the government. The Court remarked:
marriage is not institutional but personal. Nothing can destroy the ‘institution’ of marriage
except the statute that makes marriage illegal and punishable
Conclusion
Thus, it is high time that the Government of India uproots this archaic norm of marital rape immunity. It is a long-overdue decision for making homes safer for women.
In fact, criminalizing marital rape is a necessity for India to progress towards a more equal, just, and humane society