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Criminalisation of Marital Rape—A Crusade for Women’s Justice

Trigger Warning: This post contains mentions of rape, sexual assault, and violence.

India still battles the age-old dilemma of marital rape. Should women who have been raped be allowed to charge their perpetrators? Absolutely yes. Should the narrative change drastically if the perpetrator is the woman’s lawfully wedded husband in sickness and in rape? Indian jurisprudence answers in the affirmative.

Marital rape, the act of consentless sexual intercourse between spouses, remains a non-criminalised affair in India. Section 375 of the Indian Penal Code (IPC) defines the offence of rape and lays down the marital rape exception clause that excludes sexual intercourse or sexual acts between a man and his wife, above 15 years of age, from the purview of rape. The IPC’s non-establishment of this heinous act as a criminal offence virtually grants husbands the license to rape. 

Things often get worse before they get better, and in this case, there is a long way to go. Laws and policies related to this concern of women have had their fair share of court time. It has been through numerous proposals, debates, outrages, and amendments at various time periods. 

Women and girls protesting to abolish the culture of rape and assert their rights as equal human beings in our society. [Image Credits: Independent.co.uk]

Legal Battles against Marital Rape—An Overview

In the year 2000, the Law Commission encountered the issue of the rationality of the rape exception clause as they collated their findings for the 172nd Law Commission Report. It was rightfully argued that since the law criminalises other instances of domestic and sexual violence by a husband toward a wife, there was no reason for the exclusion of rape alone. However, the commission rejected the argument in favour of outlawing conjugal rape, defending themselves with the overused excuse of “staying away from the excessive interference with the institution of marriage”.

The JS Verma Panel of 2012 was constituted in the aftermath of the gruesome Nirbhaya Case to provide for “quicker trial and enhanced punishment” for criminals accused of committing sexual assault against women. The report submitted by this panel challenged the government’s age-old reluctance to declare conjugal rape as a criminal offence. It suggested the deletion of the exception clausethat a marital relationship was not a valid defence for the accused, and there was no ‘implied consent’. What seemed like a victory went, not surprisingly, nowhere. 

After the publication of the JS Verma report, the Criminal Law Amendment Bill, 2013 was drafted. It completely disregarded the report’s suggestions to criminalise marital rape and delete the exception clause. The Parliamentary Committee argued that by doing so the entire family system will be under greater stress and the committee may perhaps be doing more injustice. Once again, preference was given to their perception of a stable marriage than to the victims of abuse. Committees down the line, rather comfortably, conformed to this pattern of shying away from taking concrete decisions. 

The laudable judgement by the Supreme Court of India in 2017 in the Independent Thought vs Union of India case finally criminalised sexual intercourse with a wife below 18 years of age. The court struck down the previously present exception to the rape of a wife between 15 to 18 years of age. However, adult women remained without legal recourse. This long-overdue judgement further encouraged victims of domestic abuse to speak out and led to an increase in writs challenging the constitutionality of the second exception.

Victims of conjugal abuse and women’s rights organisations have often petitioned the courts to amend the law surrounding the criminalisation of marital rape. One such time was when the RIT Foundation, All India Democratic Women’s Association (AIWA), and a spousal rape survivor urged the Delhi High Court to strike down the exception altogether. In response to the citizen petition to the Delhi High Court, Men Welfare Trust cried wolf, stating that ‘consentless intercourse’ between spouses was ‘not unconstitutional’. They also added that married women have been given adequate protection under the law against sexual violence by their husbands. In response to this argument, the Delhi High court gave an impeccable response. “A rape is a rape. Is it that if you are married, it is okay but if you are not, then it’s rape? Force is not a precondition for rape,” said the panel of judges.

The Argument of the Fragile Gent

An average chauvinist male of this day and age can be found crouching low behind the ‘Indian values’ gravestone. Like numerous others before him, he continues to use the ‘preservation of the sanctity of marriage’ as an argument to defend the non-criminalisation of conjugal rape. Such weak attempts to make a point comes off as nothing but an excuse to hold on to patriarchy. It is blatantly obvious that the concerns have less to do with the institution of marriage and more with simply the fact that some husbands want to coerce their wives into intercourse and suffer absolutely no consequences.

Moreover, presumed matrimonial consent is a cruel and inaccurate interpretation of the bond of marriage. Neither partner promises perpetual consent, and it is time that men realise the ramifications of disrespecting basic bodily autonomy. The impudence of the present society is further highlighted when the argument—men will be harassed and laws will be misusedis insolently equipped. This comes at a time when an estimated 99.1% of sexual violence cases are not reported, according to government data. Women have been continuously brushed off when they have spoken out about their own abusive experiences. Owing to the immense stigma surrounding a victim of a sexual crime or being a divorcee, women are forced to live in oppression, tolerating abusive behaviour.

The Argument of the New-Age Suffragette 

The IPC came into force in 1862, a time when women were perceived as subservient to men—a property of the man she wedded. We have made substantial progress in matters of basic gender equality to correct that absurdity. The new age citizen should be aware that marital rape is in violation of the right to life under Article 21 of the Constitution—the right to privacy, the sanctity of the female, and her choices relating to sexual activity. Section 375, Exception 2, stands against these very fundamental human rights. Hence, it is contradictory to exclude married women from judiciary protection.  

Moreover, the Protection of Women from Domestic Violence Act, 2005 refutes Section 375. The question still stands—if all forms of abuse are illegal, why can’t an adult woman seek justice for being raped by her husband? Our society’s morality should reflect any progress made legally. India is currently defending a family system that alienates and abandons the victim, a person who has been violated by their own husband. The blatant rejection of considering a law that would provide married women with any semblance of justice is directly an act of enabling the perpetrators of such crimes.

A map of India showing the percentage of married women who have been abused, as per the year 2005-2006 [Image Credits: National Family Health Survey]

Indelicately put—because being delicate has brought us nowhere—men in India can legally rape their wives. According to a study by the United Nations Population Fund, about 35% of married women in India between the ages of 15 to 49 have been beaten, raped, or coerced into to provide sex. The criminalisation of conjugal rape should not be a debatable topic. Whether we respect women enough to free them from the shackles of state-sanctioned rape should not remain a debatable topic. Is India, a country that celebrates women, putting on a mere show for the rest of the world to believe or do Indians believe in equality at all? And if so, why must a woman’s marital status determine whether her wrath and grief are valid? There are multitudes of women who still remain oppressed. There are numerous moral and legal grounds to fight this battle upon. There are scores of questions that remain unheard and unheeded. Fortunately for us, there is just one answer echoing in everyone’s ears—the criminalisation of marital rape.

Featured Image Credits: Medium.com