What is Marital Rape?
When a married man has intercourse with his partner without her consent, it is said to be marital rape. Although the word marital rape isn’t used in the Constitution of India, but there is an exception in the rape law of the country, which states – “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. And this exception is addressed as Marital Rape in layperson, terminology.
What is the history of Marital Rape?
In 1900 BCE, a man could be sentenced to death, for forcing sex upon someone’s wife or daughter on the grounds of “vandalising someone else’s property”. In most parts of the world, in ancient times, rape was considered a property crime against the husband or father, rather than the woman herself.
Hence, rape was not possible within marriage as a man could do whatever he wanted with his property (wife).
Although later rape was considered a crime against a woman, but still the notion of marital rape was not accepted as a woman’s purity could not be ‘spoiled’ by her husband, they say.
And this notion continued and had a great influence on the Indian Penal Code Drafted in 1860, under which Section 375 categorically excluded marital rape from the definition of rape.
What does the Indian Law states?
Though, within these years there has be many progressive changes in India’s anti-rape law due to many Activist Movements, which include, amendments of 1983, 2002, 2012 & 2013. But the exception granted to marital rape still stands.
The removal of the exception of marital rape was one of the recommendations made by Justice Verma Committee, 2013. Also, the committee stated that “Rape and sexual assault are not merely crimes of passion but an expression of power.”
And as a response to this, a Parliamentary Standing Committee said that this would put the entire family system under great stress.
Is marital rape an attack on the Marital Institution of our country?
Throughout, these years politicians and many others organisations have tried to create the notion that criminalising rape within a marriage will ‘destroy marriages’ and ‘create absolute anarchy in families.’ But the question that remains unanswered is, Is the institution of marriage and our age-old customs and tradition so weak that, to sustain it we need to snatch away a woman’s right to say ‘no’ and ask her to be quiet & normalise a man (her husband) forcing him on her.
Also, this pinpoints the patriarchal mindset of our society, politicians, and the Government which asks women to adjust and compromise their dignity to save the institute of marriage. And still, consider a married woman as the property of her husband.
Why is it important to Criminalise marital rape?
- It violates Article 14 of the Indian Constitution, which states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
And by upholding the exception of section 375, we are not only undermining the dignity of a married woman by treating her as a property who has no right to her own body but also discriminating her from an unmarried woman, by not providing her equal protection under the law.
- It violates Article 21 of the Indian Constitution, which states that “Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.” We are violating a woman’s right to autonomy, through this, and denying her right to say ‘no’. According to the National Family Health Survey, around 80% of married women who are victims of sexual violence report their current husbands as perpetrators, hence, we are not acknowledging the elephant in the room, the sexual violence that she faces at her home, by her own husband, just because of her marital status.
What are the counter arguments on criminalising marital rape?
- It is said that marital rape is already considered under Section 498a of the Indian Penal Code and Domestic Violence Act. But the question that arises is, just because a woman is married, legally can we reconsider a heinous crime like rape as cruelty and provide immunity to a man to force himself on his wife, without her consent.
- Also, there can be a misuse of the law, to harass men.
How can we counter the misuse of the law?
Obviously, there is no sure-shot solution to deal with misuse of any law, may it be laws on marital rape or on any other crime but we could take some measures to protect men from false allegations and cases, by setting up a committee that could do a brief research and recommend some measures to safeguard men. Some of the measures that could be taken, from my research are, as follows: –
- Make provisions to minimise, its misuse.
- Strict punishments and fines for filing false allegations.
- Make tests like Narco analysis or any other reliable test, compulsory as there are limitations to providing evidence.
Is awareness about consent important?
The concept of consent has been alien to most Indian households, as men in mass aren’t taught to respect a ‘no’ from a woman and aren’t told that sex has to be consensual, even if she is your wife or girlfriend.
And most young women are taught to satisfy the need of their man in their marriage and to adjust as it is considered essential for a woman to compromise within the concept of marriage. They are not brought up with the idea of acknowledging what they want, need, or feel!
And this is why we need awareness, that sex has to be consensual irrespective of gender and relationship status.
Conclusion
For years, women as a whole have been oppressed by misogyny and patriarchal mindset, and it’s time we together uplift the oppressed section and create a space that has a right to live a life with equality and dignity. Around, 150+ countries have already criminalised marital rape (a symbol of existing patriarchy in society), but unfortunately, we are among the 32 countries that are still left to criminalise this horrific crime, which includes North Korea, Afghanistan, and Pakistan.
In a conclusion, criminalising marital rape is not an attack on the institution of marriage or on the rights of men, it is an attack on the age-old mindset that still outlook a woman as her husband’s property and not as an individual with her own agency. It is about fighting against the notion of marital sanctity that is based on the subjugation of women. And it’s about challenging the rape culture, that denies women their basic rights, respect, and bodily autonomy. Every law that exists, has some pros and cons but that should not stop us from criminalising a heinous crime, like rape.
Author: Neelima Sankar
Juris Centre 