Why is India's Legal System Divided On Whether Marital Rape Should be a Crime?
13:14 GMT 28.08.2021 (Updated: 10:38 GMT 19.07.2022)
© AP Photo / Bikas Das
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In a landmark judgement, Kerala High Court ruled this month that marital rape, though not criminalised in India, is a good enough reason to seek a divorce. Women's rights activists across the country argue that the exception in the law forces women to suffer in their own homes.
India's Chhattisgarh High Court on Thursday dismissed a case against a man whose wife accused him of marital rape.
While giving his verdict, Justice N.K. Chandravanshi said: "...sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape... even if it was by force or against her wish".
Unfortunately, this is not the first time an Indian court has made such a remark: the line between consensual sex and rape often gets blurry in the Indian judiciary.
Section 375 of the Indian Penal Code categorises the act of penetration without informed consent as rape. However, the section also states that sexual intercourse with one’s wife who is over the age of 15 does not constitute an offence of rape. In 2017, India's Supreme Court struck down Exception 2 to Section 375 which exempted marital rape of girls between the age of 15 and 18 from the purview of rape. Now, sex with a minor wife, despite consent, constitutes rape in India.
The exemption can be traced to the British era: the impossibility of marital rape under English common law was suggested in Sir Matthew Hale’s History of the Pleas of the Crown, published posthumously in 1736.
"The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband, which she cannot retract."
However, many lawyers and legal experts believe that this law is "atrocious" and archaic and needs to be struck down.
“When the Indian Penal Code came into existence in 1860, a wife was considered to be chattel of her husband and consequently did not possess any rights as an independent entity. However, since then, societies have evolved, and yet this law has remained unchanged. The right of a woman over her own physical body and consent for intercourse is a basic human right. In spite of that, if a husband imposes himself on the wife, it is considered consensual simply based on their marital status and not the fact of consent", Anindita Mitra, Advocate-On-Record, Supreme Court told Sputnik.
Although the Indian Penal Code has been amended several times, this "contentious" exception still remains untouched. In 1997, Sakshi, an organisation that works tirelessly towards preventing sexual abuse in its various forms, approached India's Supreme Court for directions concerning the definition of the expression “sexual intercourse” as contained in section 375 of the Indian Penal Code.
Sakshi stated in its petition that "forced sexual intercourse by a husband with his wife should equally be treated as an offence just as any physical violence by a husband against the wife is treated as an offence".
It also suggested that the expression “sexual intercourse” needs to be defined properly and the understanding of the term "rape" cannot be limited to abuse by penile/vaginal penetration alone.
However, in its 172nd Report on Review of Rape Laws, the Law Commission of India rejected the suggestion made by the organisation and observed that it may amount to excessive interference in marital relationships.
"Article 14 of the Indian constitution the State shall not deny to any person the equal protection of the laws. If a woman is forced into sex by a stranger it is called rape but if it is by her husband it's not. Why? There are social factors, legal factors, and economic factors that contribute to this thinking in our country. There are very few countries including ours who still don't consider marital rape as a crime", Mitra said.
In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government criminalise marital rape. That same year, Justice JS Verma headed the report of the Committee on Amendments to Criminal Law and recommended that the exception for marital rape be removed. The report also pointed out that "the exemption for marital rape stems from a long outdated notion of marriage which regarded wives as no more than the property of their husbands". However, these recommendations were never implemented and the exception is still intact.
"Recently, 'adultery' as contained in Section 497 of the Penal Code was struck down by the Supreme Court on the basis that 'the autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life should be protected from public censure'. Applying the same principle and the fact that the law on the said subject is archaic, steps should be taken to make changes to marital rape too. How will society's mentality change unless you change the law?" Mitra said.
Indian society often assumes that a woman cannot be raped by family members and any claim that contradicts this assumption gets dismissed behind closed doors and hushed shame.
The National Family Health Survey (2005-06) discovered that among the 80,000 interviewed women, 93 percent said that they had been sexually abused by their current or former husbands. After a decade, another National Family Health Survey (2015-16) showed no signs of improvement. Rather it revealed that 99.1 percent of sexual assault cases are going unreported.
India is among the 36 countries across the world where marital rape is not criminalised. Marriage is viewed as a contract between man and woman by the courts, and men dominate this contract. From birth, a woman in India is taught to be a good daughter, wife, and mother and these years of inculcation of family values transform their mindset and prevent them from raising their voice.
After the harrowing incident of the Nirbhaya rape case in 2012 that shook the nation, the Verma Committee was set up to strengthen sexual assault laws and it "reported that the relationship between the victim and the offender is immaterial and focus should solely be maintained on the presence of consent".
However, a panel set up by the Indian government to review the Verma Committee's suggestions opined that "criminalising marital rape would put the entire family 'under stress' and can potentially destroy the institution of marriage".
"The laws were codified in the British Era and they were always in favour of men. At that time, the concept of women having rights of their own did not exist. Why is our society male-dominated and patriarchal? Because years of conditioning have happened in terms of laws and societal mentality", Mitra said.
27 August 2021, 12:13 GMT
In 2012, Karnataka High Court held that denial of sex is a violation of sections of the Hindu Marriage Act and hence a good enough reason to seek divorce. "The husband can't be made to suffer for no fault of his and be deprived of his natural urge to enjoy sexual happiness if the wife is unwilling to share the bed and discharge her duties", the judgement stated.
In a country where marriage is considered a sacred institution, any attempt to make even minimal changes leads to hostility and backlash from society. The majority of women are dependent on their husbands financially and emotionally and the helplessness and hopelessness often force them to stay quiet and they continue to tolerate abusive behaviour.
Mitra also said that men and society forget the wife is also a human with rights. A woman is entitled to say "no" and the violation is not justified just because she is married. This criminalisation of marital rape is needed for the women to understand that it's not okay, she added.
Legal experts often argue that there are increasing chances of gross misuse if marital rape becomes a crime. However, the possibility of the misuse cannot be the reason to not give Indian women the option to speak up.
"A lot of times, the arguments against criminalising marital rape state that it's extremely difficult to prove [that it has happened] and that there are high chances of abuse of the said laws. But if that’s the case then the onus is on the legislators and the judiciary to lay down parameters and keep the abuses in check in manners they think expedient. They have already done it for several other issues. However, this argument cannot be the reason why an archaic law should continue to exist. At the end of the day, it's about consent. It's not about the marital status of the relationship between two people. Just because you are married, you don’t get the right to force yourself on that person or sexually abuse them", Mitra said.
She also said that given the lack of education and resources among the female population in India, a positive change through judicial pronouncements and legislative actions is required. This will help women to understand that they have the choice to speak up against the wrongdoings against them in spite of being dependent on their families or circumstances.
"I am hopeful that someday this law will be declared unconstitutional. It may take some time but it will happen. But we as a society will have to fight", Mitra added.
