In 2018, an analysis [1] by Mint, an Indian news agency, found that 99.1% of all sexual assault was unreported, and, in most of these cases, the perpetrator was the husband. On average, an Indian woman is “17 times more likely to face sexual violence from her husband than from others,” according to the analysis.
It is appalling that the criminalisation of marital rape is still a hot topic for debate in today's world. We see women being encouraged and supported to take part in politics, sports, military and other male-dominated professions. These advances paint a fair picture of empowerment but while we focus on achieving these tangible changes, we forget that the smallest but strongest unit of patriarchy resides at home. Behind closed doors, in the bedroom.
Legal Perspective
Exception 2 to Section 375 of the IPC, which defines rape, states that sexual intercourse by a man with his wife is not rape, unless the wife is below 15 years of age. In 2019, there were nearly 150 countries that had criminalised marital rape in some form or the other. Most nations criminalized martial rape only after the UN’s “Declaration on the Elimination of Violence Against Women” in 1993. While some countries follow the route of criminalising it explicitly, in others there are punishments for husbands who use violence to have sex with their wives even though marital rape is not explicitly understood as rape (eg, Malaysia). Some countries have provisions for criminalising sexual violence by spouses but do not specifically outlaw marital rape. There are 32 countries where marital rape is not a criminal offence. These include China, Bangladesh, Laos, Myanmar, Afghanistan, Malaysia, Egypt, Lebanon, Kuwait, Singapore and others. India, North Korea, Iran and some other countries are on the list of nations where marital rape is “explicitly excluded”. Incidentally, Nepal and Bhutan, our neighbours, have both explicitly decriminalised marital rape. Explicit decriminalisation of rape means the law makes no distinction between rape and marital rape. [2] [3]
Origin of Anti-rape Laws
To understand why such a widespread distinction between sexual assault by the husband and by any other man on a woman even exists, we need to take a closer look into how rape came to be legally recognised.
The word 'raptus' in Latin means “seized”, from the word 'rapere' meaning “to seize prey; abduct, take and carry off by force". In ancient Roman law, the term was used for several crimes of property, and women were also considered to be the property of men. In some cultures, rape was seen less as a crime against a person than as a crime against the head of the household or against chastity. As a consequence, the rape of a virgin was often a more serious crime than of a non-virgin, a wife or widow, and the rape of a sex worker or a "unchaste" woman was, in some laws, not a crime because her chastity could not be harmed. In 17th-century France, even marriage without parental consent was classified as rape. [4] A man who rapes a woman is excused if he agrees to marry her. Often, the "punishment" for the rapist is marriage. A free pass to rape the same woman her whole life?! As ridiculous as it sounds, it's not difficult to see where such practices arose from. We understand that this emphasis on women's chastity is the most important tool of the patriarchy. It's heartbreaking to see that throughout history, society has failed repeatedly to recognise and respect women as human beings.
With this background, the laws we have today are not that surprising anymore. Rape as a violation of individual consent is still a new concept for many in our country. The Supreme Court in 2021 stayed the arrest of a man accused of rape by his former partner, asking "... however brutal the husband is... when two people (are) living as husband and wife... can sexual intercourse between them be called rape?" In 2019, former Chief Justice of India, Dipak Misra said that marital rape should not be made a crime in India, because "it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values." [5]
Opposing Views Against Criminalisation
In light of the media attention on the PIL updates last year, men on Twitter started a “#MarriageStrike” campaign, claiming that they wouldn't get married if the marital rape exception was removed. Recently, men’s rights activists threatened to go on a hunger strike against PILs on marital rape in the Supreme Court. They believe that such a law would lead to false implications and they would lose their property and jobs. According to the figures from National Crime Records Bureau’s (NCRB) Crime in India report 2020 [6], less than 8% of all cases under investigation for rape were found to be 'false'. Even among the 'false' cases, there is a lot that the data does not say [7] including the factors that may lead sexual violence survivors to withdraw their complaints, turn hostile during investigation or trial, or settle outside court. Should we not have a law at all in fear of its misuse? We have a justice system in place to prevent fabrication and it should be strengthened to protect the innocent.
Within a few days of their marriage in June 2017, Dilip Pandey’s wife alleged that he and his family began harassing her for insufficient dowry. She said her husband used to abuse her and forced her into having unnatural sexual relations, including by inserting his finger and a radish in her private parts, against her will. When efforts at reconciliation failed, the wife filed a criminal complaint, including allegations of rape, against her husband. The trial court agreed to frame charges on all complaints, including sections 498A (a husband or relative of husband subjecting a woman to cruelty), 34 (acts done by several persons in furtherance of common intention), 376 (punishment for rape) and 377 (unnatural offences) of the Indian Penal Code (IPC) 1860, as well as section 498A against the in-laws. After the charges were framed, Pandey and his relatives filed a petition in the Chhattisgarh High Court because Indian law does not recognise marital rape. Justice N.K. Chandravanshi noted that the law on rape excludes marital rape under an exception that reads: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” Pandey was cleared of the charges. [8]
In a case like this where the justice system has also failed the victim, there is an even greater risk of amplified abuse towards them. Such statements made by the court almost act as encouragement and deter people from seeking help altogether.
It is also important to note that violence may not always be necessary for rape. Often, women give in to their husband's demands to protect themselves. Financial dependence, a lack of support from family members, concern for their children, social stigma, and fear of violence stop women from reporting abuse or separating from their husbands. Only when it gets unbearable do they finally seek help. A reinforcement of the internalised notion that her body belongs to her husband, or that marriage is in itself a form of consent, also makes a woman suffer in silence and accept it as her fate.
The Road Ahead
It took our judicial system seven years to hear petitions seeking the criminalisation of marital rape. Nevertheless, there have been some hopeful developments. In 2021, Kerala High Court recognised marital rape as a form of cruelty and grounds for divorce. [9] In March 2022, Karnataka high court in a landmark judgement considered marital rape no different than non-marital rape while refusing to quash rape charges filed by a wife against her husband. [10]
Following a split judgement by the Delhi High Court in May 2022, the Supreme Court ruled that all women are entitled to safe and legal abortion till 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP) Act, and making any distinction based on their marital status is "constitutionally unsustainable". At present, the SC awaits response from the Centre and the final hearing is scheduled in March. A few independent pleas have also been filed. The legislature primarily needs to remove the exception that differentiates between marital rape and stranger rape. While amendment of the law would be a huge step, it won't be adequate unless we have a robust criminal justice system that makes reporting easier and accessible. Necessary changes must be made for making our laws gender neutral, thus recognising abuse towards men and people of all genders. Comprehensive sexual education must be included in school curriculum to teach young people about consent and recognising sexual abuse. And let's hope those formidable Twitter activists stay on the “marriage strike” forever.
Resources:
https://www.outlookindia.com/national/sc-observations-welcome-but-omarital-rape-still-not-illegal-in-india-here-are-countries-where-it-is-news-226913
https://en.m.wikipedia.org/wiki/Marital_rape_laws_by_country
https://feminisminindia.com/2017/10/06/origins-rape-culture-mythology/
https://timesofindia.indiatimes.com/city/bengaluru/no-need-to-make-marital-rape-an-offence-ex-cji-dipak-misra/articleshow/68785604.cms
https://ncrb.gov.in/sites/default/files/Crime%20in%20India%202018%20-%20Volume%201.pdf
https://www.thenewsminute.com/article/what-data-false-rape-cases-doesn-t-tell-us-163631
https://article-14.com/post/why-it-is-time-to-recognise-marital-rape-as-a-crime--612eeda9e54b8
https://thewire.in/law/marital-rape-a-form-of-cruelty-is-ground-to-claim-divorce-kerala-hc
https://indianexpress.com/article/cities/bangalore/karnataka-hc-marital-rape-husband-7833373/
Amazing article and such thorough research!