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No relationship, no matter how solemn, entitles a person to another person’s body. Marriage does not grant a license to sexual relations in perpetuity.
Rape is a crime in India. Marital rape is not. In fact, the Indian Penal Code makes an explicit exception in section 375, stating: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
Only a handful of countries in the modern world make this legal exception. Does the expectation of sexual relations in a marriage override a woman’s bodily autonomy and her right to say no? To be clear, it is understood that when we talk about marital rape, we are indeed talking about all the violations and wrongdoings associated with the universally recognized crime of rape. The only difference between the two cases is the legal bond of marriage.
Why is a social institution that is meant to tie two individuals in a consensual bond of partnership the only roadblock in the way of criminalizing a particular form of rape, an established criminal act?
The Delhi High Court is currently hearing a clutch of petitions that seek to do away with the exception provided to marital rape under the IPC. The crux of the ongoing debate in court is captured by the remarks from the two Delhi HC judges presiding over the case.
As reported by ANI, on the one hand, Justice Rajiv Shakdher questioned the Delhi Government Counsel as to why rape affects the dignity of an unmarried woman but not that of a married one. While on the other hand, Justice C Hari Shankar brought up what according to him are “qualitative differences” between a marital and a non-marital relationship as well as “an expectation and to an extent a right to… a normal sexual relationship with your partner.”
Before we delve deeper into the issue, we must take a look at some numbers to shed light on the nature of the reported rape cases in India and the relationship or lack thereof between the perpetrator and the victim.
According to National Crime Records Bureau, a government agency responsible for the collection and analysis of crime related data in the country, in 2020, in a whopping 95.6% of reported rape cases, the perpetrator was either a relative of the victim or a known person. In some states, this figure was a shocking 100%.
An analysis of National Family Health Survey (NFHS) 2015-16 data by Livemint indicates that an estimated 99.1 per cent of sexual violence cases go unreported and that the average Indian woman is 17 times more likely to face sexual violence from her husband than from others.
Therefore, as unthinkable as it may seem, it is quite evident that sexual violence by close relations, especially the husband, is a widely prevalent reality in our country.
Against this bleak backdrop, arming women with a legal remedy against marital rape should seem like a fairly just consideration. So, why is it that the law still hasn’t taken a step in this direction and what are the misgivings about declaring marital rape a criminal offence?
As has been widely reported, the central government, in a 2018 affidavit filed in the case, had stated that marital rape could not be made a criminal offence as this could lead to destabilization of the institution of marriage and the resultant law would be an easy tool to harass the husbands.
More recently, during the current hearing of the case, the Delhi Government Counsel stated that married women could seek legal remedy under Section 498A of the IPC which deals with cruelty against women by her husband or his relatives.
A whole cohort of men’s rights activists are actively campaigning against any change in the law and counter pleas have also been filed to keep the legal exception provided to marital rape in place. The contention of this group is also based on the belief that criminalizing marital rape would “unleash a flurry of fabricated cases against the husbands.” This group represents a large number of people who continue to raise their voices against the supposed misuse of domestic violence laws such as IPC Section 498A. I say ‘supposed’ because there is no concrete data to ascertain how many of the reported domestic violence cases are actually fabricated.
It would be unfair to downplay the sufferings of anyone falsely accused of any kind of crime. However, given that sexual violence is a common experience in a large number of marriages, how wise would it be to continue shielding the errant husbands from legal action? No law is immune to misuse. Not one. Despite their misuse, it cannot be argued that human beings would fare better in the absence of all laws. Let’s not throw the baby out with the bathwater.
Finally, coming to the most important aspect of the marital rape debate: consent. No relationship, no matter how solemn entitles a person to another person’s body. Marriage does not grant a license to sexual relations in perpetuity. Non-consensual sex between a husband and a wife is as heinous a crime as any other form of rape, if not more.
The so-called ‘sanctity of marriage’ cannot be protected at the cost of the personal liberty and rights of married women. Furthermore, if a marriage violates the dignity of a woman and the law strips her of any legal recourse to seek justice, what are we really protecting in the name of marriage?
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