Breaking the silence: on the legality of marital rape in India

Author: Anju S Ghosh

Institution: The National University of Advanced Legal Studies, Kochi

Introduction

In the skyline of Indian jurisprudence, the question of marital rape remains unanswered and signifies the absence of the assertion of women’s rights and their bodies. While there is an increasing global focus on acknowledging and criminalizing marital rape, as of 2016, marital rape is still not a criminal offense in 36 countries, including India (India Today, 2016). This paper discusses the legal, sociological, and historical analysis of marital rape and calls for criminalization in India for the cause of gender justice.

Legal Basis and Historical Development

The Indian Penal Code was enacted in 1860 and has since undergone numerous changes regarding rape laws; however, it still does not consider marital rape as a crime. Rape is defined in section 375 of IPC, and there is an exception given that “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape” (The Indian Penal Code, 1860, 375). This exception stems from archaic perceptions of marriage and women’s self-governance.

The changes in rape laws in India have proved to be gradual, a process that is often triggered by public outrage after the most heinous acts. Following the Mathura rape case in 1983, the Criminal Law Amendment Act provided essential safeguards, such as acknowledging custodial rape and altering the burden of proof in some circumstances. However, it was silent on marital rape (Fordham International Law Journal, 2019).

After the Nirbhaya case in 2013, the government amended laws by expanding the definition of rape and enhancing punishment. The Justice Verma Committee was set up in response to this case, and one of their recommendations was to abolish the marital rape exemption. However, this recommendation was not implemented in the subsequent Criminal Law Amendment Act of 2013 (Fordham International Law Journal, 2019).

International Comparisons

The approach taken by Indian law in this area is unique compared to many other nations. For example, in 1991, England and Wales outlawed marital rape through a civil law case called R v R ([1991] 1 AC 599), where the House of Lords determined that a man could be prosecuted for raping his wife. Likewise, it was in 1983 that the criminalization of marital rape in Canada was made possible through amendments in the Criminal Code (Admin, 2020). The examples of other countries prove that the world is gradually approaching the criminalization of marital rape, highlighting the significance of the consent principle and female bodily integrity.

The explanation for not criminalizing marital rape in India can be attributed to sociological factors – social imbalance of power. Currently, marriage in India is also seen as a holy affair, with female spouses mandated to bow to their male counterparts in matters of procreation and sexual interactions (Upadhyay, 2022). There is also the role of religious beliefs in determining the attitudes held towards marital rape. Numerous religious stakeholders in India have held beliefs that fail to acknowledge marital rape since marriage is sacred and both partners have specific responsibilities (Upadhyay, 2022).

The effects of marital rape are not only physical but also psychological, as it leaves a lasting mark on victims. Research has revealed that the rates of depression, PTSD, and suicidal thoughts are significantly elevated among survivors of marital rape (Agarwal et al., 2022). These effects are further compounded by the fact that the affected persons have no legal redress to turn to and end up feeling condemned and helpless.

Legal and Practical Hurdles

Thus, the criminalization of marital rape encounters several legal and practical issues in India. Seemingly, the chief reason against criminalization is the possibility of getting abused and the perception that a particular law threatens the institution of marriage. Successively, the Indian government has argued that making marital rape a crime will make marriages ‘instability’ and turn into a strategy for intimidating husbands (Sabhapandit, 2023).

Another natural colossal barrier is the ability to characterize marital rape. Marital rape takes place in the confines of marriage, and most of the time, it is not witnessed by other people as is the case with stranger rape. Some of the questions that come to mind are: Can such a law be implemented in the first place, and instances of people fabricating incidences of domestic violence?

The judiciary also remains backward and has not wanted to intervene in what is regarded as the domestic sphere of couples. Even in recent judgments such as Nimeshbhai Bharatbhai Desai v. State of Gujarat, the court though termed marital rape as ‘an ignominy of her womanhood,’ connotatively did not eliminate the exception clause (Sabhapandit, 2023).

Arguments for Criminalization

Despite these challenges, there are compelling legal and ethical arguments for criminalizing marital rape: Despite these challenges, there are compelling legal and ethical arguments for criminalizing marital rape:

Constitutional Rights: Such an exception goes against the constitutional rights and freedoms of the Indian Constitution, especially the right to equality as prescribed by Article 14 and the right to life and personal liberty as prescribed by Article 21.

International Obligations: India has ratified several international treaties and is a member of the CEDAW, which requires nations to combat all types of violence against women and girls.

Evolving Social Norms: Laws are also instrumental in addressing the ills of society, and just like society, they also have to grow with time. Most developed countries recognize marriage as a contract on sexual relations in which a man has unrestricted rights to the wife’s body as a patriarchal concept that does not conform with gender equity.

Public Health Concern: Men’s use of marital rape poses mental health consequences for the victims. Criminalizing would recognize these effects and could provide appropriate assistance to the victims (Agarwal et al., 2022).

Deterrent Effect: Legalizing marriage rape may continue to justify rape in marriage hence legalizing marital rape may go a long way in deterring the act and sending a clear message that no form of violence, particularly sexual one, is acceptable in marriage.

Potential Impacts of Criminalization

The criminalization of marital rape could have several positive impacts:

Legal Protection: It would provide legal recourse for victims of marital rape, currently left without specific legal protection.

Awareness and Reporting: Criminalization could increase awareness about marital rape and potentially lead to higher reporting rates (Dhillon, 2021).

Shifting Social Norms: Legal recognition of marital rape as a crime could gradually shift societal attitudes towards women’s autonomy within marriage.

Mental Health Benefits: Acknowledging marital rape as a crime could positively impact women’s mental health by validating their experiences and providing avenues for support (Agarwal et al., 2022).

Conclusion

This paper focuses on the legal issues surrounding the criminalization of marital rape in India, thus drawing social and cultural relations. Of course, there are some barriers, but on the same note, there are overwhelming reasons why criminalization of the practice should be supported from the legal point of view, the ethical point of view, and the Human rights point of view. The lack of legal appreciation for marital rape condones women’s inferiority and neglects their fundamental rights in marriage.

Legislative Action: It is recommended that the IPC should be made without the marital rape exception, thus making the country meet global standards.

Judicial Activism: The judiciary appears to have the essential function of utilizing the existing law(s) to mean protection against marital rape, even if there is no law written on it.

Social Awareness: It therefore becomes paramount to launch vigorous public awareness on the fact that marital rape is wrong since society has for long supported and encouraged it.

Support Systems: Setting up programs that can help survivors of marital rape, including counseling services and legal assistance.

Training for Law Enforcement: Awareness creation and education of the police force and judiciaries for appropriate handling of marital rape.

While advocating for the criminalization of marital rape in India is not without its pitfalls, it is a long overdue measure that would contribute to achieving gender justice as well as enforcing the constitutional rights of citizens. It is also interesting to note that as society progresses, so should the law – a promise that all individuals, married or unmarried, have the equal right to live with dignity and determine the use of their bodies.

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