*Trigger Warning: Mention of Rape*
Marital rape refers to forceful sexual acts committed by one spouse on another without the consent of the latter. Battering rape (sexual abuse accompanied by violent physical abuse) and coercion into sex through emotional, psychological, economic or verbal abuse are the most common forms of sexual abuse within marriage.
These cases of domestic abuse have been more prevalent against women than men, even though not exclusively. And in the biggest proportion of such cases, they consider it to be normal spousal behaviour due to centuries of normalisation of the same.
One of the most influential factors regarding the normalisation of such abusive behaviours is the practice of keeping the institution of marriage on a sacred pedestal and complete denial of abusive relations, even when heinous crimes such as rape enter the dynamic.
A History Of Marital Rape
So what exactly has been reinforcing this idea? For the longest time, women had been considered the property of men. They were deprived of all rights starting from property to voting and even the most basic, that is, bodily autonomy and rights to self-determination in personal lives.
This view was further strengthened using religious doctrines, the law system of the times, draconian societal norms and the taboos surrounding open discussions about sexuality. This was, of course, perpetuated through generations and still persists in multiple countries of the world, such as India, Pakistan, China, Senegal, Turkey, Bangladesh and Ethiopia, to name a few.
A scenario that is also commonly witnessed regarding such situations of abuse within marriage is that the decision-makers or the law-framers of the nation are reluctant to legislate on such issues due to taboos and fear of widespread controversy.
The need to mark circumstantial boundaries within the institution of marriage has never been taken seriously. Moreover, law-enforcing systems such as the police are also always reluctant to register such cases and investigate them.
Survivors are mostly convinced into believing that “the situation could have been much worse” and that “they should not throw away their marital life for such a simple matter”.
According to the National Family Health Survey (NFHS-5) (2019–2021), in India, among married women aged 18–49 who have experienced sexual violence, 83% reported their current husband to be the rapist and 13% reported a former partner or husband.
Nearly one in three Indian women aged 18–49 years have suffered some form of spousal violence and around 6% have suffered sexual violence.
Even though there has been a visible trend of spousal violence declining with schooling and wealth, one out of five women with 12 or more years of schooling and 19% of the women who are in the highest wealth quarter reported having suffered physical, sexual or emotional violence of some degree.
Legal Aspects Of Marital Rape In India
“According to the Indian Penal Code, Section 375, a man is said to commit ‘rape’ if he:
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following seven descriptions:
First, Against her will.
Secondly, Without her consent.
Thirdly, With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly, With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly, With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly, With or without her consent, when she is under eighteen years of age.
Seventhly, When she is unable to communicate consent.
Explanation 1
For the purposes of this section, ‘vagina’ shall also include labia majora.
Explanation 2
Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1
A medical procedure or intervention shall not constitute rape.
Exception 2
Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape”.
Exception 2 of this law criminalising rape clearly mentions that rape, when committed by a spouse on their own wife, does not qualify to be a crime, despite there being coercion and forced penetration without any form of consent.
For years the practice has been downplayed and trivialised by lawmakers, society, law enforcers, family units and mainstream media. But it becomes increasingly open and dangerous for the growth of society when this treatment comes from the judicial system of the nation as well.
In this regard, a notable case was the Harvinder Kaur vs. Harmandar Singh Case,1984, wherein the Delhi High Court explicitly stated that “the Constitution could not interfere in a household because it would destroy the institution of marriage”.
Even after the notorious Nirbhaya Rape Case, the Verma Committee recommended criminalising rape within marriage, but the then Indian Government conveniently overlooked it.
The State vs. Vikash Case, 2014 yielded a similar result when a special Fast Track Court declared that “the prosecutrix [petitioner] and accused being legally wedded husband and wife, the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused”.
The Supreme Court in 2015 dismissed a woman’s plea to criminalise marital rape as she had been a victim of repeated acts of sexual violence at the hands of her husband. The bench, consisting of Justice AR Dave and Justice R Banumathi, ruled that she was “espousing a personal cause and not a public cause”.
The woman challenged it on the basis of her Right to Life and Liberty, both of which were being breached in her situation.
What Spurred The Recent Discussion?
In recent days this case has reemerged in the country with multiple people and human rights groups wanting Exception 2 of Article 375 to be struck down. A Division Bench in the Delhi High Court, consisting of members Justice Rajiv Shakdher and Justice C Hari Shankar, gave a split verdict on the case.
Justice Shankar’s take AGAINST criminalisation of marital rape:
Justice Shankar tried to compare the rape of a woman by her husband to being raped by a stranger, stating that “what he (husband) is doing is wrong, no one can deny. The distinction between the two situations is that, where the parties are married, the woman has consciously and willingly entered into a relationship with the man in which sex is an integral part”.
He further went on to mention that when a woman marries a man, she has automatically given him the right to expect such “conjugal relations” with her and that even though there might be coercion in the process, it is not similar to being “ravaged by a stranger” and, hence, the plea of the woman invalid.
Multiple instances from his arguments seem to blatantly normalise the coercion of women into sexual intercourse and disregard women’s rights to own bodily autonomy once they are within the institution of marriage.
Furthermore, his idea of comparing rape by a stranger to rape by a spouse and the so-called variation in the degrees of both cases brings my attention to another set of statistics that very well represents the ground reality.
In the Mint’s analysis of the NFHS, an estimated 99.1% of sexual violence against women goes unreported, wherein most cases are by a spouse. An Indian woman is 17 times more likely to suffer from sexual violence from a close partner or spouse than someone else.
Justice Shakdher’s take FOR the criminalisation of marital rape :
One of Justice Shakdher’s major observations was that Exception 2 of Article 375 rationalises the act of coercion of women for sex in a marital relationship. It undermines the intensity of the crime only based on the relationship between the victim and the perpetrator.
Another observation made by him was that “a married woman’s ability to say ‘no’ to sexual communion with her husband when he is infected with a communicable disease or she is, herself, unwell, finds no space in the present framework of rape law”.
The provisions of the Article 14, Article 15, Article 19(1)(A) and Article 21 were also brought into notice in order to reimburse the Constitutional safeguards an individual is entitled to but does not come into play the moment it is a woman being violated of her rights just because it is within the institution of marriage.
It was also noted that even though it is non-consensual sex with elements of coercion and force, it is not “labelled” as rape so as to “save the institution of marriage”.
Even though marriage is oftentimes considered as a base of a familial structure, it cannot remain on the same sacred pedestal if it is based on oppression and tyranny.
Denigration Of Consent
Historically, the concept of consent seems very blurred, as women were always perceived as a man’s property. Even lesser so when it came to marital relations. But consent is consent, no matter the circumstance, institution or relationship between the victim and the perpetrator.
On the other hand, marriage is just a social contract and NOT a means of eternal consent. Marriage does not give men the right to use women’s bodies according to their own will.
Women have fought for bodily autonomy and rights to self-determination for centuries. And to think that this single exception in the Indian Constitution takes away years of the Indian feminist movement and its demands and achievements.
Consent should be “unequivocal”, “voluntary” and “willing”, as described by Article 375 of the Indian Penal Code.
A pertinent argument when it came to the recent verdict given by the Delhi High Court was that marking clear boundaries as to what is sexual abuse and rape within a marriage will hamper the sanctity of the marital institution.
If making laws criminalising marital rape means destroying the very institution of marriage, then I think it’s time to rethink our concept and perception of this draconian marital system.
The Common Myths And How To Approach The Situation
The most common argument that I come across when discussing women’s rights within marriage is that women can “trap men wrongfully” if marital rape gets criminalised. Or “if women can report male rapes, then why are men not given the same rights”.
It baffles me the extent to which some individuals go to trivialise women’s issues and the daily misogyny that women have to go through due to the existing patriarchy.
The degradation of male rapes and sexual violence against men is a direct result of the same toxic masculinity and centuries of patriarchy and should not be blamed on women trying to fight for basic human rights.
The fact that men cannot challenge cases of sexual assault is also a result of the same oppressive law that women are also fighting against. Women fighting for their rights should not be seen as a threat but more as an example for men to follow up.
Rather than downplaying women’s experiences of abuse and fights against exploitation, men should try to be allies and push for more gender-neutral laws so that their rights are protected. The acceptance of gender-neutral laws can be the only way to bite down on gender-based violence and cater to the human rights of all genders and sexes.
Greater Representation In Lawmaking And Law Enforcing Bodies
In a shockingly huge number of cases in India, law enforcers often become the perpetrators of injustice and assault. Some instances are the Mathura Rape Case (1972) and the most recent rape case in Lalitpur, Uttar Pradesh.
Apart from the multiple cases of sexual assault and violence, a number of cases also reflect that the survivors are discouraged and “counselled” into believing that they need to move beyond the incidents and think of the honour and respect of the family that they are a part of.
They are shamed, their intentions questioned and doubted, ridiculed and threatened by abusers. They are completely derailed from their previous desires to demand justice and mete out suitable punishment for the perpetrators of abuse.
Many women have to resort to multiple inhuman measures, such as self-harm for proof of domestic violence, in order to escape abusive and violent marriages.
In such situations, the increased representation of women in governing and law enforcing bodies would help create an environment conducive to change where women would have greater freedom and opportunities to report and deal with cases of sexual violence.
It would give women the courage and basis for getting greater legal help and end the cycle of psychological and social abuse that they would have to deal with.