Marital Rape: A Legal Assault in India

Marital Rape

Kakali Das

“Even if it’s your wife, NO means NO” – Pink (Movie), 2016

It’s 2023, and in India, it is perfectly legal for a man to rape a woman as long as they are married. In 1900 BCE in Babylon, 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.’

The Code of Hammurabi dictated that if a man forces sex upon another man’s wife or a virgin woman ‘living in her father’s house,’ then that man should be put to death.

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And, the idea of a husband ‘forcing sexual intercourse’ upon his wife was deemed the man’s ‘legal right.’ In most other parts of the ancient world, the earliest laws defined rape as a property crime against the husband or father, rather than the woman herself. And rape wasn’t possible within a marriage because a man could do whatever he wanted with his property…a.k.a. his wife.

But this notion wasn’t left behind in the ancient world. In the 17^th century, be it in the Qing dynasty or the British Empire, even though rape laws evolved to view rape as a crime against the woman herself, it was on the grounds of violation of her sexual purity. This wasn’t considered possible in a marriage because a woman’s purity could not be ‘spoiled’ by her husband, of course!!!

A British jurist even said that marriage was a legal contract by which a woman ‘gave herself’ to her husband for life. In the 18^th and 19^th centuries, with the growth of the middle-class mentality and Victorian morality, this emphasis on women’s chastity increased, and rape began to be perceived as a threat women faced outside the household, which their fathers and husbands had to protect them from.

It was under the influence of these laws and attitudes that the Indian Penal Code was drafted in 1860. Even though Section 375 includes the concept of ‘consent’, but it categorically excludes martial rape from the definition of rape by mentioning the ‘exception’ – “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

Fast forwarding to a century and a half later, activist movements have led to many progressive changes in India’s anti-rape laws in 1983, 2002, 2012 and again in 2013. And yet, the exception granted to marital rape still stands tall. But, why? In 2013, in response to a judicial committee’s recommendation to criminalise marital rape, a parliamentary standing committee responded that doing this would put the entire family system under great stress.

Even former Lok Sabha speaker and BJP MP Sumitra Mahajan, in the same year, said in the Lok Sabha, “Marital rape shouldn’t be made into a criminal offence… Things like these should be sorted out within the family or by counselling. There is no need for a law.” A statement of that kind from a woman herself is utterly shameful and sickening!

“It’s 2023, and in India, it is perfectly legal for a man to rape a woman as long as they are married. In 1900 BCE in Babylon, 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.’ The Code of Hammurabi dictated that if a man forces sex upon another man’s wife or a virgin woman ‘living in her father’s house,’ then that man should be put to death.”

Again, in December 2015, in response to the private member’s bill, the Minister of Law and Justice of India Kiren Rijiju called marital rape “very complicated” and “very personal in nature.”

Since then, politicians and public figures have been reiterating that marriage is a ‘sacred institution’, hashtag customs, values, ‘log kya kahenge’ etc. and hence, criminalising rape within a marriage will ‘destroy marriages’ and ‘create absolute anarchy in families’.

Also, the recent statement by Justice NK Chandravanshi reiterating that ‘sex or sexual act performed by a husband is not rape, even if it is done by force and against the wife’s wishes’ has quashed even the slightest hope of criminalising ‘marital rape’ in the country.

But, are these arguments even surprising? It harks back to the idea that marriage makes a woman her husband’s sexual property, and giving him sex whenever he wants is a wife’s duty. We reinforce this sexual subjugation of women in marriage in different ways, through religious rituals, social festivals, as well as our popular culture.

On the one hand, this sexual subjugation is shown to be harmless, and on the other hand, news media, TV shows, and movies reinforce the mind-set that the threat of rape or sexual violence only comes from ‘monstrous outsiders.’

But here are the facts, over 80% of married women who are victims of sexual violence report their current husband as the perpetrators, and 9% report a former husband. Over 50 countries around the world have outlawed marital rape. Feminist movements around the world are emphasizing the importance of ‘sexual consent’ and ‘sexual autonomy’, and empowering women to report sexual violence no matter how powerful the perpetrator are.

And yet, India continues to uphold a man’s right to rape his wife. It is one of only 36 countries where intimate assault is a perfectly legal crime. I still wonder people are even aware about the existence of the concept ‘marital rape’. “How is it a rape if we are married…”was a recent statement by a guy friend when I tried explaining him the significance of this term “marital rape.” Sigh!

The fight to criminalise marital rape in India then, is not just about changing the law on paper. It is about attacking the age-old mind-set that still views a woman as her husband’s property, and not as an individual with her own agency. It’s about fighting against this notion of marital sanctity that is based on the subjugation of women, and about challenging this larger rape culture that denies women our basic rights, respect, and bodily autonomy.

Lastly, what has to be infused in the body, mind and soul of every human being on this cosmos, irrespective of the gender or status, is the very fact that – in 100 languages “NO means NO”. And I hope the law makers grow their brain soon to recognise the severity of criminalising ‘intimate assault’ or ‘marital rape’ in India.

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