*Trigger Warning: Mention Of Rape*
With marital rape being seen as “normal” by Indian society and our laws, consent has become a hollow word for married women in India.
Rape is a heinous crime. Unfortunately, India witnesses thousands of cases every year. Like any other nation, India has historically been patriarchal, which might be a reason for this. High levels of poverty and low levels of education are also factors that contribute to this issue.
The general mindset of people has still not evolved to an adequate level even after several measures and awareness campaigns have been led by the government. Many people still resort to victim-blaming, shaming, and sometimes even outright denying the crime. Marital rape is one such issue.
Section 375 of the IPC defines rape as “sexual intercourse against a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age”.
But this section also comes with an exception which says, “Sexual intercourse by a man with his own wife who is above the age of 18 is not sexual assault”.
Marriage A Free Pass For Sex?
This exception makes it clear that in the eyes of the law if a husband forces his wife to have sex with him, he would not be considered a rapist. This can be interpreted to get quite a few interesting insights into the mindset of our society both now and when such laws were created.
It shows that marriage can very easily be used as a free pass for sex. A wife can say no, but if the husband forces her in spite of that, there is no legal remedy available for her.
It clarifies that the current system does not allow a married woman to have bodily autonomy and choose whether she wants to be physical or not.
While this might not be true for everyone, current laws do allow the existence of many such people in our society. If we looked at the Hindu Marriage Act, we would find that not having intercourse can be used as a reasonable ground for divorce.
The Karnataka High Court in 2012, in a judgement by a division bench comprising Justices K L Manjunath and K Govindarajulu, stated:
“The husband can’t be made to suffer for no fault of his and be deprived of his natural urge to enjoy internal happiness if the wife is unwilling to share the bed and discharge her duties.”
This further reduces the autonomy of a wife to choose because she can be threatened with divorce if she denies fulfilling the desires of the husband. All of this shows that even now, the law has left open possibilities for a woman to be treated inferior to a man.
Letting this view prevail would be an assault on the dignity of women in India who witness several cases of rape on a daily basis. This shows that we as a society have not only failed to ensure the security of women outside but within our households as well.
Fighting For The Criminalisation Of Marital Rape
The holy bond of matrimony should consist of adequate protection for both partners. The Verma Committee, which was set up after the horrific case of rape of Nirbhaya in Delhi in 2012, said in its report that “the relationship between the offender and the victim is immaterial and focus should solely be maintained on the presence of consent”.
Keeping all of this in mind, several conscious stricken people, activists and organisations have filed petitions in the courts several times. One such ongoing case is the RIT Foundation Vs. Union of India, where several such petitions have been clubbed together and are being heard in the Delhi High Court.
The petitions seek the abrogation of the exception and, thus, the recognition and criminalisation of marital rape. The government has said that they are already underway in making changes to the IPC, CrPC, CPC and the Evidence Act. But this would take a long time. The Delhi High Court has currently asked for the opinion of different states and other stakeholders.
Most cases of rape in India already go unreported. If the offender is a family member, then it is even less likely for the victim to file a case. So even if marital rape is criminalised, it is likely that most of the cases might go unreported as well. But it would at least open up an avenue for survivors to seek justice. This would also motivate others to stand up to injustice inside their households.
We have come a long way forward in ensuring equality of gender in our country. More women are pursuing higher education, getting jobs and building independent lives for themselves. We see many inspirational cases coming up on a daily basis. Slowly and steadily, women have made considerable space for themselves in society.
The mere existence of women’s rights groups points to the fact that there is growing awareness in our society about such issues.
But the work is not over yet. There is a long way to tread and issues like these are hurdles in our path that need to be overcome. For this to be done, the citizens need to work hand in hand with the government.
So, whatever the outcome of this case may be, it is important that public consensus be built on this issue so that people can pressurise the government to tackle this problem as soon as possible. This would not only be beneficial for the people who suffer on a daily basis but would also be a huge push forward for the women’s rights movement in India.