Marriage in India bestows men with a license to rape

Regardless of marital status, rape is about violence rather than morality – however, under Indian law, nonconsensual sex between a husband and wife is not defined as such.

Sugandha Gupta is a policy professional with a decade of experience in the development, coordination, and implementation of the Federal Government of India’s policy on higher education. Passionate about contributing to a system of fair and accountable governance, she has also worked for the inclusion of disadvantaged communities in higher education.

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Source: The Wire

Background

RECOGNISED AS THE NINTH-MOST DANGEROUS COUNTRY for women, India ranks fifth for intimate partner violence today. An analysis of the National Family Health Survey reveals that the average Indian woman is 17 times more likely to experience sexual violence perpetrated by her husband than from others. Despite this, marital rape is not defined under any Indian statute or law. Even though the definition of rape codified in Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault, including non-consensual intercourse with a woman, Exception 2 to Section 375 explicitly states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape,” and thus immunises such acts from prosecution.

Hence, a woman is presumed to deliver perpetual consent to have sex with her husband after entering into the marital bond. Even though the Justice Verma Committee, constituted to propose amendments to the criminal law after the infamous ‘Nirbhaya’ rape case in 2012 recommended that the exception to marital rape be removed, the Criminal Law Amendment Act 2013 dismissed the same. While reviewing the Bill, The Parliamentary Standing Committee on Home Affairs remarked that criminalising marital rape had the potential to destabilize the institution of marriage and the family system, would be under great stress. The Committee felt that if a woman is aggrieved by the acts of her husband, there are alternative means of approaching the court. 

Why care about Marital Rape?

The current provisions in Indian law fail to render justice to married women who are victims of sexual violence. Non-criminalisation of marital rape prevents women from exercising agency and autonomy over their own bodies, thereby undermining their dignity and rights. Marital rape in India builds over the perception of ‘implied consent,’ which stands irrevocable. This leads women to silently endure suffering as they live with their perpetrators and cannot report crimes that are not recognised in law, amplifying the adverse impacts of the initial victimisation.

This deeply entrenched power imbalance between men and women in India’s patriarchal society precludes any assurance of formal equality, let alone substantive equality. The Parliamentary Committee Report on Criminal Law Amendment Act, 2013 lacks the feminist legal methods of ‘asking the women the questions’ and ‘feminist-centric practical reasoning,’ thereby ignoring the implications current rape laws have on married women. Further, the rational/empirical position to challenge the assumption about rape laws that are discriminatory is thwarted.

Marital Rape Impunity: Against Constitutional Rights

The marital rape exclusion clause stands contrary to the ethos of Articles 14 and 21 of the Indian Constitution. It violates the ‘Right to Equality’ enshrined in Article 14 by creating an artificial distinction between married and unmarried women, denying them equal protection from rape and harassment. Similarly, it violates women’s rights to liberty and dignity guaranteed under Article 21 of the Constitution. Exception 2 is also discriminatory and conflicting with the beneficial intent of Article 15(3) of the Constitution, which enables Parliament to make special provisions for women and children.

In 2017, The Supreme Court of India issued a landmark judgment where it penalized rape within child marriage, recognizing every married girl’s right to bodily integrity and self-determination by increasing the age from 15 to 18 years under Exception 2. However,  since then, no concerted effort has been taken by any government in respect of married females above 18 years, who are equally threatened and are denied these rights due to the current provisions of Exception 2. 

International Scenario

In 1932, Poland became the first country to introduce legislation that made marital rape a criminal offence, followed by Australia in 1976. In the 1990s, the United States, Canada, and New Zealand abolished the concept of marital rape. Even the UK which had hitherto adopted ‘Implied Consent Theory’ recognised in 1991 that marriage does not automatically imply that a woman consents to all sexual activity. These countries have set precedent by recognising that rape, regardless of marital status, is about violence and not morality.

India ratified the UN’s Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993. The CEDAW Committee’s 58th Session (2014) recommended that India should widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women, and remove the exception of marital rape from the definition of rape. Unfortunately, even though marital rape has been impeached in more than 100 countries, India remains one of the 36 countries where marital rape is still not criminalized.

Way Forward

In a move to empower women and ensure gender parity, India is currently deliberating on raising the marriageable age for women to 21 years. While it is a progressive step towards realisation of Goal 5 of the Sustainable Development Goals (SDGs) on gender equality and women empowerment, the federal government must first act to protect its female citizens against the social and cultural patterns of misconduct by recognising marital rape as a crime. Rape is rape, irrespective of the relationship between the perpetrator and survivor. The Union Government must set precedent by amending the penal laws handed down from the British and confer married women with the respect and bodily integrity they deserve within closed doors alike.

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