MARITAL RAPE: A crime or not?

Criminalisation of marital rape still a dream in India!

Rape is a criminal offence under section 375 of Indian Penal Code. A man is guilty of rape when he forces sexual intercourse on an unwilling woman, i.e., ‘against her will’ or ‘without her consent’ or ‘while her consent is obtained under fear of death or hurt’ or ‘with or without her consent when she is under age of twelve’. But a man is not guilty of raping his own wife unless she is under the age of ‘eighteen years’. A person guilty of rape shall be punished with imprisonment for life or for a term which may extend to ten years and shall also be liable to fine. A person is guilty of raping his own wife below the age of fifteen years or between fifteen to eighteen years of age shall be punished with imprisonment of either for a term extendable to two years or with fine or with both. This section gives advantage to women under the age of twelve years and some aid to women aging between twelve to eighteen years of age but after eighteen years of age there is no relief given to them, after age of eighteen years if a husband rapes her wife he will not be punished.

 It is depressing that even after seventy-two years of independence India ranks in one of the thirty-six countries who have not criminalised marital rape as a crime. We dream of becoming super power but we are not empowering the females of our country, how would we become a super power?

It is shattering that one out of four females are being raped and every four seconds a married woman is either being beaten, threatened for dowry, or forced for sexual intercourse but she cannot criticize anyone because our justice system provides her support upon cruelty, domestic violence and dowry threats but it does not provide any support for marital rape.

 Do you think that it is any less than any of the other crimes? Government made provisions for ‘triple talaq’ or ‘polygamy’ they are concerned with these topics but what for marital rape, it is not any less in my opinion! There are few questions which are prevailing in the society before we look upon the reasons for the same, just have a look on the questions raised by some people and then we will try to understand the reason behind them.

How much of an issue is marital rape in India?

Why do people oppose the fact of criminalising marital rape?

Do women are property of their husbands?

Following are the reasons or arguments because of which we are unable to achieve the dream to criminalise this heinous crime of marital rape:

• Our Indian Culture

In 2019, our former chief justice Dipak Mishra said in an interview with The Times of India that “marital rape should not be made a crime in India as it is not suitable for our country and it will create absolute anarchy in our families and our country is present because of our family values”.

It means that our country is not prepared for the change like the west because of illiteracy, religious beliefs and social customs, because of these factors it will not work in our country. Our system thinks that if we changed the law then it will destroy many marriages in the country and most of the husbands will be declared criminals in the eyes of law, moreover the men-ridden society thinks that a good Indian wife will always dutifully consent to her husband forever. They say that our system is protecting marriages of our country, I say how- by not changing the law and not giving help to the wives who think every day about how to get rid of their marriages, I want to ask that whose rights they are protecting of husbands raping their wives or of wives being raped.

Our Honourable Supreme Court agrees upon the fact that criminalisation of marital rape cannot threaten the institution of marriage in any way. In Independent Thought vs. Union of India by Honourable Supreme Court of India, it was held that marriage is personal and if divorce and judicial separation has not affected the institution of marriage then criminalising marital rape would also not affect it in any way, interestingly in Nimeshbhai Bharatbhai Desai vs. State of Gujarat the High Court of Gujarat also ruled out that non consensual act of marital rape weakens and violates the trust and confidence in any marriage and it is the one reason which has damaged the institution of marriage.       

• Once they are married their consent is implied

The idea that once a woman is married she hands over the lifetime right to her husband to have sexual intercourse with her anytime he wants to, despite of her consent is deeply embedded in our society. This perception is deep-rooted because of the law made by the British in late 1700s by Mathew hale of England that “a husband cannot rape his wife as when they are marrying they enter into a mutual matrimonial consent and contract that wife has given herself up to her husband and now she cannot revert back”. Another justification given is by William Blackstone in 1753, that after marriage the legal entity of wife is being suspended and they become one single person and identity of husband prevail, i.e., “woman becomes the property of husband which he highlighted when he defended the common law of covertures”.

 Now the humorous part is, that in 1991 the British changed their law and perspective in regard to marriage when Lord Keith communicated on behalf of the court that “modern marriage consists of partnership of equals and wife is no longer submissive to husband” but Indian law continues to blindly follow the principles settled up long ago in the past.

But in Nimeshbhai Bharatbhai Desai vs. State of Gujarat 2017 Gujarat High Court held that it has been a long time following the notion of implied consent now it is the time we see and uphold the bodily autonomy of each and every woman irrespective of their marital status, but our government system is sleeping they don’t want to change the law despite offered by the judiciary.

• They will misuse the law made for their safety

Government by sending an affidavit to Delhi High Court argued that is we criminalise the crime of marital rape then all the sexual acts between wife and husband will qualify to aim that if it is a marital rape or not and moreover, it will be an easy tool for wives to use it against their husbands as the end decision will always rest in the hands of wives after any intercourse.

This objection of government that it will be used as a tool by wives against her husband was raised many times like at the time of Domestic Violence Act, Dowry Prohibition Act, and Section 498A of Indian Penal Code which states the mental and physical cruelty against woman by her husband and his family.

Yes, there are some cases where some women had tried to use these reliefs given to them for their protection against their husbands in order to take revenge but the count is next to negligible because we all know that one out of every four women are genuine victims of domestic violence be it in a physical or mental sense. And if there are some women who try to misuse these reliefs then, why we have to panic or over think because there is our judiciary which will provide justice to husbands or men who are falsely accused, we should have faith in our judiciary but by fearing from these limited small number of women we cannot put the lives of those women who are a lot more in number.

• Contradiction b/w sections

Moreover I find our laws contradicting with themselves like-

On one hand article 14 of Indian constitution provides equality to all and article 21 of Indian constitution states that no person shall be denied of their life and personal liberty except according to provisions established by law,

On the other hand section 375 of Indian Penal Code which creates categories on the basis of marital status of women and prioritizes the unmarried ones than married women in protecting them from rape. It does not treat every woman equally where our constitution gives right to every woman to be treated equally and they all have their right to do whatever they want and whenever they want, they have a right to refuse something if they don’t want that to happen.

Over years and years, our judiciary has grown and our Supreme Court has often stated that article 21 of Indian Constitution is not limited to life and personal liberty but much more extended to right to health, dignity, privacy, safe living conditions, and safe environment.

My Opinion

In my opinion,

“It is a situation as that of a double edged sword, where she has to pin point those people whom she love and sees as a family structure, hence it is most important to take care of these situations very systematically so that every woman should feel safe and confident while questioning upon her family. We should criminalise marital rape as a crime because it is no less than a rape done by a strange. Rape is rape no matter who the perpetrator is and what the age of survivor is”.

Changes in society and law should be done parallel to each other. The biggest battle to fight is with patriarchy. Most of the marriages in India are arranged where woman has no say and family members consent on her behalf,

Now firstly there is the idea of implied consent prevailing in the society and then in a marriage where woman has no say will only lead to these type of unfortunate incidents because whenever she will try to object or raise her voice, she will be intervened by her own family members and she would be made quite, moreover the perpetrator here is his husband only and in a society like India standing against one’s own husband is extremely difficult for a woman.