Marital Rape: Why India's Laws Must Change

Marital Rape in India: An Ongoing Legal Battle

Marital rape is not criminalised in India. For years, women's rights activists have tirelessly campaigned on the streets and in the courts to have it recognised as a crime. The absence of criminalisation has left millions of women vulnerable to legal rape within their marriages.

Chitra Awasthi's RIT Foundation is among the petitioners in the case before the Delhi High Court. The petition argues that "without the right to refuse sex, married women are legally reduced to mere sexual and reproductive subjects."

Awasthi shares her journey: "I have been running the RIT Foundation for years. We do a lot of community work amongst women. I have met with numerous victims of  domestic violence. When I heard the cases of one or two women, I understood that the violence that was going on with these women was of a peculiar nature. The husband would come drunk, beat up his wife, abuse her, humiliate her in every way, and then he would force himself on her. When the women used to talk, we realised that this issue (marital rape) was the most painful amongst all the problems they undergo. They would go through the pain yet they don’t feel comfortable talking about it. One day, a girl came to me and I looked at her case. She was in a pathetic condition and then I thought to myself if I don’t do anything about this then what is the point in all this. That case really inspired me to file the petition before the court."

The contention is that rape within marriage in India, even in the twenty-first century, remains legal due to criminal laws dating back to 1860. Exception 2 to Section 37

Marital Rape in India: An Ongoing Legal Battle

Marital rape is not criminalised in India. For years, women's rights activists have tirelessly campaigned on the streets and in the courts to have it recognised as a crime. The absence of criminalisation has left millions of women vulnerable to legal rape within their marriages.

Chitra Awasthi's RIT Foundation is among the petitioners in the case before the Delhi High Court. The petition argues that "without the right to refuse sex, married women are legally reduced to mere sexual and reproductive subjects."

Awasthi shares her journey: "I have been running the RIT Foundation for years. We do a lot of community work amongst women. I have met with numerous victims of  domestic violence. When I heard the cases of one or two women, I understood that the violence that was going on with these women was of a peculiar nature. The husband would come drunk, beat up his wife, abuse her, humiliate her in every way, and then he would force himself on her. When the women used to talk, we realised that this issue (marital rape) was the most painful amongst all the problems they undergo. They would go through the pain yet they don’t feel comfortable talking about it. One day, a girl came to me and I looked at her case. She was in a pathetic condition and then I thought to myself if I don’t do anything about this then what is the point in all this. That case really inspired me to file the petition before the court."

The contention is that rape within marriage in India, even in the twenty-first century, remains legal due to criminal laws dating back to 1860. Exception 2 to Section 375 of the Indian Penal Code, 1860, explicitly exempts marital rape from being recognised as a crime.

Awasthi emphasises that this issue should not be viewed as a battle between men and women. "Do not make this issue about men versus women. It is not like society’s two groups are at loggerheads with each other. This should be viewed as a situation where the girl is in a problem, and there are four men also standing with her—her brother, father, and son; people who are concerned about her. Instead of making this a man versus woman issue, if we look at it as victim versus villain, it will be better. Many times, I’ve seen this, and I object to it being referred to as an Indian thing. Often, this is combined with Indian culture. If this was nowhere else, then how is there a law against it in every European country? Look at any developed country—marital rape is criminalised there."

The Fight to Criminalise Marital Rape

In many countries, changing times have brought changes to laws recognising non-consensual sexual intercourse by a husband with his wife as rape. In India, numerous petitioners have appealed to the Supreme Court to criminalise marital rape. With nearly 150 countries already having criminalised it, all eyes are now on the Indian judiciary.

Yogita Bhayana, Founder of People Against Rape in India (PARI), strongly opposes the term "marital rape". She explains, "When you say 'marital rape,' I do not understand what this means. Rape is rape. Now, whether it's marital or non-marital, whether it's after marriage or before marriage, in a gang or by a single person, rape is rape. What does rape mean in our constitution, in the IPC? It says that when your body is violated against your will, that is rape. Just because you performed some rituals, committed yourself socially, or legally signed some documents, do you become eligible to rape someone? Just because she has been 'institutionalised' to be your wife or you have received the rights to call her wife, does that mean you can rape her?"

According to the National Family Health Survey, among married women aged 18-49 who have ever experienced sexual violence, 83% report their current husband as the perpetrator, and 13% report a former husband. This statistic highlights the urgent need to remove the legal immunity that husbands currently enjoy.

Dr. Ranjana Kumari, Director of the Centre for Social Research, emphasises the human rights aspect of this issue. "This is a question about women’s human rights, and the first step towards women’s empowerment is about their right to their bodies and their choice. This violates all three because it is a violation of women’s human rights, a violation of their choice, and a violation of the right to their own bodies."

Dr. Kumari adds, "We took up this issue after the Nirbhaya rape case immediately after the Verma commission was formed. Since the Verma commission was made to improve rape laws, we referred to rape as sexual assault and just like this assault can happen in public places and inside families, we said it can also happen inside the bedroom. The commission included it in the recommendation that if there is no consent, then even after being in a marital relationship, the man has no right to engage in a sexual relationship with the woman. When it was presented in Parliament, it was however excluded. Everything else was accepted and passed. The definition was corrected, the quantum of punishment was increased, but marital rape’s stance was not accepted. The rebuttal given was, firstly, we cannot let the police enter the bedroom. Secondly, it was argued, how will one prove if there was consent or not? Thirdly, if the relationship gets worse, then the women will misuse it. Fourthly, in accordance with family laws and laws related to sexual relations, there are conjugal rights in a marriage. And lastly, they said families will break because of this. All these five arguments are wrong".

Outdated Laws and Human Rights

The laws in India related to rape are so antiquated and in violation of human rights and the dignity of women that last year, the Karnataka High Court ruled that sexual assault on a dead woman's body does not constitute rape under Section 376 of the Indian Penal Code. Consequently, a man was acquitted of rape charges after he sexually assaulted the body of a 21-year-old woman he had murdered.

Advocate Tej Pratap Singh shared a distressing case from Kanpur. "A lady came to me with a complaint that she had been harassed by her spouse and wanted justice. She spoke about the incident that on a particular day when she got late from work, she informed her husband through a WhatsApp message that she would be late and wouldn't be able to prepare dinner on time for their family. Despite this, she was harassed, beaten by her husband with a belt, and then she was subjected to forced sexual intercourse."

Yogita Bhayana highlights the unique challenges of proving marital rape. "These rapes happen within four walls. And those rapes that happen outside are captured on camera or have witnesses, making them easier to prove. But how do you define marital rape? How do you get witnesses to this? Where will you get the proof as this is happening within a marriage? That is the only catch; therefore, we want a law to be enacted that would cover the grey areas."

The judgment of the European Commission of Human Rights states that a "rapist remains a rapist regardless of his relationship with his victim". The movement to criminalise marital rape in India is a crucial step towards ensuring the dignity and safety of women. As the world watches, the Indian judiciary has the opportunity to align with global human rights standards and safeguard the rights of women, ensuring they are not legally raped within the confines of their own marriages.

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