Henna Kapadia, Law student at Kishinchand Chellaram Law College, 2nd year LLB
“The law, it is true, is exceedingly jealous of any interference in matters marital, and very unwilling to trespass inside the chamber where husband and wife live together, and never does so except in cases of absolute necessity.”[i]
A century later, these words ring true as if they were uttered yesterday.
Marital Rape is legal in India. Let that sink in.
India is 1 of 36 countries where it is not a crime for a man to rape a woman- as long as they are married.[ii] Most countries recognize that rape is rape, and that rape is a crime no matter the circumstances or relationship between the perpetrator and the victim. So, what’s holding India back? A careful analysis points to several factors: an outdated IPC dating back to the Victorian era, a rigidly patriarchal society, a diversity of religious beliefs that suppress women’s voices and agency, and a culture where marriage and family are deemed to be the pinnacle of a woman’s life by society writ large.
Rape is not only a gravely horrendous act but also a violation of a woman’s fundamental rights under Article 14 and Article 21 of the Constitution of India. Article 14 guarantees equal protection of rights to all its citizens. Article 21 guarantees protection of life and personal liberty also interpreted as a right to live with dignity. These rights are awarded to everybody except for married women who are raped by their husbands.
Getting married insinuates perpetual consent or the term implied consent for sexual acts. This was constituted when a man and a wife were seen as one legal entity and women were seen as dependent on and the property of their husbands. Sadly, that is still the case for women, in India.
Rape is rape. It’s worse when you have to live with your rapist. These laws have been inherited by the English, but they have long criminalized marital rape. These laws in India, however, have remained untouched in the last 74 years after Independence.
Marital Rape and the Law:
Section 375 of the IPC (rape) discriminates between those women that are married and those that aren’t. Section 9 of the Hindu Marriage Act, 1955 states that you can demand sexual access to a spouse, most often used by a man.
Thus, at present, the only recourse against non-consensual sex for married women in India are civil provisions given under the Protection of Women from Domestic Violence Act, 2005, or Section 498-A of the IPC on the cruelty against a wife by the husband or a husband’s relatives.
What is holding India back in criminalizing marital rape?
A quick look at this, and we can break it down to the basics - Misogyny and Fear.
Indian Government- The government argued that criminalizing the rape of married women by their husbands can “destabilize the institution of marriage.” Imagine that! That’s what the institution of marriage for a whole country rests on, silencing rather than acknowledging, then what chance did women have for equality?
Misuse of the law- The Indian Government believes that women will take advantage of this and use it to harass their husbands! Even if that’s the case, do we think so lowly of our Judicial System to not rely on them to weed out the false claims?
Perpetual Consent after Marriage- The idea that once a woman is married she gives perpetual consent is a very outdated and patriarchal view. It doesn’t recognise the autonomy a woman has over her own body, as if when she signs her marriage certificate she also signs over her body?
A study by the UN Population Fund states that more than two-thirds of married women in India, between the ages of 15 to 49, have been beaten, raped, or forced to provide sex. Cases in India are underreported, due to various reasons, the stigma around rape, fear of losing the family façade, and not having support from the law are a few. Despite that, at any given point, there are several writ petitions before the Supreme Court and the various high courts, filed by individuals and civil society organizations challenging the marital rape exemption to Section 375, with no real change.
It’s high time India changes its attitude towards women and recognize their right to autonomy and physical integrity. Marital rape is a stark example of the patriarchy still present in India and the legal system.
By criminalizing marital rape India will move towards further aligning itself to its constitutional responsibility of “renouncing practices derogatory to the dignity of women”. Women will be safer from their abusive spouses, they can receive the help needed to recover from marital rape and can be safe from domestic violence and sexual abuse. Women deserve to be treated equally. An individual’s human rights do not deserve to be ignored by anyone, including their spouse.
Changes in law and changes in society go hand in hand. The battles that lay ahead are the Patriarchal system, the institution of marriage, and the family structure of India. Let’s go!