Why isn’t marital rape a criminal offence in India?

Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape. It is a non-consensual act of violent perversion by a husband against the wife where she is physically and sexually abused.

In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Women who became prime targets for marital rape are those who attempt to flee. Criminal charges of sexual assault may be triggered by other acts, which may include genital contact with the mouth or anus or the insertion of objects into the vagina or the anus, all without the consent of the victim. It is a conscious process of intimidation and assertion of the superiority of men over women.

While most of the developed world has penalized marital rape, surprisingly, there is no law to protect married women against marital rape in India – Home Affairs minister Haribhai Chaudhary had said that marital rape can’t be made a criminal offence in India because of high illiteracy rate, poverty, extreme religious beliefs and the very ‘sanctity’ of marriage.

The best way that the law protects women subjected to marital rape is by charging the husband with a minor offence of cruelty, the punishment of which goes up to three years in jail or a fine. In worse cases, she can seek restraining order and protection under domestic violence legislation.

Advancing well into the timeline, marital rape is not an offence in India. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offence in India. A look at the options a woman has to protect herself in a marriage, tells us that the legislations have been either non-existent or obscure and everything has just depended on the interpretation by Courts.

Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause- “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.

This section in dealing with sexual assault, in a very narrow purview lays down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 to 16 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 16, there is no legal protection accorded to the wife, in direct contravention of human rights regulations.

How can the same law provide for the legal age of consent for marriage to be 18 while protecting from sexual abuse, only those up to the age of 16? Beyond the age of 16, there is no remedy the woman has.

The wife’s role has traditionally been understood as submissive, docile and that of a homemaker. Sex has been treated as obligatory in a marriage and also taboo. Atleast the discussion openly of it, hence, the awareness remains dismal. Economic independence, a dream for many Indian women still is an undeniably important factor for being heard and respected. With the women being fed the bitter medicine of being “good wives”, to quietly serve and not wash dirty linen in public, even counseling remains inaccessible.

A marriage is a bond of trust and that of affection. A husband exercising sexual superiority, by getting it on demand and through any means possible, is not part of the institution. Surprisingly, this is not, as yet, in any law book in India.

The importance of consent for every individual decision cannot be over emphasized. A woman can protect her right to life and liberty, but not her body, within her marriage, which is just ironical. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against “perverse sexual conduct by the husband”.
 

The much awaited Domestic Violence Act, 2005 (DVA) has also been a disappointment. It has provided civil remedies to what the provision of cruelty already gave criminal remedies, while keeping the status of the matter of marital rape in continuing disregard. Section 3 of the Domestic Violence Act, amongst other things in the definition of domestic violence, has included any act causing harm, injury, anything endangering health, life, etc., … mental, physical, or sexual.

It condones sexual abuse in a domestic relationship of marriage or a live-in, only if it is life threatening or grievously hurtful. It is not about the freedom of decision of a woman’s wants. It is about the fundamental design of the marital institution that despite being married, she retains an individual status, where she doesn’t need to concede to every physical overture even though it is only be her husband. Honour and dignity remains with an individual, irrespective of marital status.

Section 122 of the Indian Evidence Act prevents communication during marriage from being disclosed in court except when one married partner is being persecuted for an offence against the other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant, unless it is a prosecution for battery, or some related physical or mental abuse under the provision of cruelty. Setting out to prove the offence of marital rape in court, combining the provisions of the DVA and IPC will be a nearly impossible task.

The trouble is, it has been accepted that a marital relationship is practically sacrosanct. Rather than, making the wife worship the husband’s every whim, especially sexual, it is supposed to thrive a mutual respect and trust. It is much more traumatic being a victim of rape by someone known, a family member, and worse to have to cohabit with him. How can the law ignore such a huge violation of a fundamental right of freedom of any married woman, the right to her body, to protect her from any abuse?

Anuja Shah, online senior family therapist at ePsyClinic explains, “I once got a very disturbing case where the woman was so traumatized that the child born out of wedlock reminded her of the brutality of her bedroom.” She adds, “Once married, men think that any sort of sex he indulges in with the wife is normal. He believes that even if he forces his wife to have sex, it cannot be called rape. And most often I have observed that in such cases, there is some sort of existing torture or physical abuse in the marriage.” Marital rape simply means that husband doesn’t have sensitivity towards the wife.

Priya Nanda, group director of social and economic development at the ICRW (International Centre for Research on Women) had told a leading portal, “The reason men don’t want to criminalise marital rape is because they don’t want to give the woman the power to say no.”

A Positive Step Towards Criminalization of Marital Rape in India

In India, it is not illegal for a man to rape his wife — but a high court judge said in a ruling that it should be.

Justice J.B. Pardiwala of the Gujarat High Court was presiding over a case involving a woman who’d accused her husband of sexually assaulting her. He repeatedly forced sex on her, she said. He also subjected her to “mental and physical torture,” the woman claimed.

Pardiwala ruled that the husband could not be charged with rape in this case since the Indian Penal Code explicitly states that “sexual acts by a man with his own wife … is not rape.” The judge said the man could be charged with sexual harassment and spousal cruelty (which carry lesser punishments than rape).

As he delivered his decision, however, Paridwala expressed dismay at the limitations of the law. He advocated for the criminalization of marital rape, saying that outlawing nonconsensual sex in a marriage is the “first necessary step in teaching societies that dehumanized treatment of women will not be tolerated.”

“Marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized,” he added.

Marital rape is a widespread problem in India. According to a 2018 National Family Health Survey, more than 80 percent of married women who have experienced sexual violence named their current spouse as the perpetrator.

In a 2014 survey of more than 9,200 men across seven Indian states, one-third admitted to having forced a sexual act on their wives.

Observers said that the Gujarat High Court’s ruling is a positive step toward the criminalization of marital rape in India. Though public pressure has been mounting to change the law, there’s no indication a revision is forthcoming.

Last year, the Indian government pushed back at suggestions that marital rape should be outlawed, saying that such a change could “destabilize the institution of marriage.”

Conclusion

Marriage does not thrive on sex and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart from judicial awakening; we primarily require generation of awareness. Men are the perpetrators of this crime. ‘Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps in protecting women’s human rights’, says the UN. Men have the social, economic, moral, political, religious and social responsibility to combat all forms of gender discrimination.