Marital Rape: Why Are Indian Laws Still Confused About This?
Trigger Warning: Rape, Sexual Violence Against Women
In India, the concept of marital rape is the epitome of what we call 'implied consent.' Marriage between a man and a woman in India implies that both have consented to sexual intercourse. The same message is conveyed by the Indian Penal Code, 1860. Section 375 uses six descriptions to define the crime of rape. "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape," according to one exception to this offence.
However, in the case of Independent Thought v. Union of India, this was interpreted as "sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape." This most recent change, however, is only half the battle won. It is discriminatory and violates the fundamental rights guaranteed by the Indian Constitution. Thus, a red flag reminding us that the Indian Penal Code and other legislations that normalise marital sexual violence are ancient and urgently need to be updated to reflect modern times.
Law and Society: Restricting Criminalization of Marital Rape in India
The infamous case of Phulmoni Dasi, in which an eight-year-old child died of excessive bleeding caused by her husband's sexual intercourse, who was in his mid-thirties at the time. However, the husband was sentenced to one year in prison for "causing grievous hurt by doing a rash and negligent act dangerous to life," rather than rape. The following two points from the decision help to analyse the general attitude toward marital rape and how it is still relevant today.
"The law of rape is a branch of the law that has nothing to do with this case."
"It is true that the law is exceedingly jealous of any interference in marital matters, and very reluctant to trespass inside the chamber where husband and wife live together, and never does so except in cases of absolute necessity."
The same message is conveyed by the Indian Penal Code, 1860. Section 375 uses six descriptions to define the crime of rape. "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape," according to one exception to this offence. However, in the case of Independent Thought v. Union of India, this was interpreted as "sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape." This most recent change, however, is only half the battle won. It is discriminatory and violates the fundamental rights guaranteed by the Indian Constitution.
These two points recognise the most common legislative and judicial viewpoint. In its definition of domestic violence, the Protection of Women from Domestic Violence Act of 2005 includes, among other things, sexual abuse, which is defined as "any conduct of a sexual nature that abuses, humiliates, degrades, or otherwise violates the dignity of a woman." The acts that constitute sexual abuse are not specified in this definition.
Section 375 exception 2, on the other hand, absolves a husband of any crime if he rapes his wife. Both of these laws appear to contradict each other because rape is defined as "sexual conduct that abuses, humiliates, degrades, or violates the dignity of a woman." Both laws are extremely ambiguous and must be amended. Surprisingly, legislation prohibiting marital rape was enacted without the term "marital rape" being used. Thus, the reluctance to interfere in a married couple's sexual life and to name it after a heinous crime such as rape.
It took 127 years to make up for the imperials' disastrous mistakes in the Phulmoni case. Independent Thought, a child rights organisation, filed a PIL in 2017 to challenge the constitutionality of Section 375's Exception 2. It was argued that the exception discriminated between married and unmarried girl children because the latter is considered rape while the former is not. Even when a married woman is not protected from rape by her own husband, there is discrimination. It is a failure to comprehend two distinct concepts: "consent to marriage" and "consent to sexual intercourse." They cannot be used interchangeably or interchangeably as synonyms. If nothing else, an adult woman understands the act of sexual assault better than a child. As a result, it is equally important to protect married women over the age of 18 from the crime of rape.
Rape Laws with No Discrimination
Section 375 of the IPC is likely the only provision that discriminates between two groups of the same sex: married and unmarried women. It is absurd to have a law that protects all women from sexual violence while also allowing marital rape of a married woman by her husband. This discrimination is a violation of Article 14 of the Indian Constitution. It is now clear from various Supreme Court decisions that the right to life guaranteed by Article 21 of the Constitution includes the right to privacy, the sanctity of the female body, and the ability to make sexually active choices. Section 375 Exception 2 violates these fundamental human rights and is in direct conflict with the Protection of Women from Domestic Violence Act of 2005. And yet, it is still clinging to a law that completely defeats its purpose of protecting women from rape, and which should be declared unconstitutional.
It's a situation like a double-edged sword. She is forced to question those she loves and respects, which has an impact on the family structure. As a result, adequate precautions should be taken to protect the survivors, as this may result in abandonment. It is critical to call such a family system into question and to criminalise marital rape because it is no different than when a woman is raped by a stranger. Rape is rape, regardless of who commits it or how old the victim is.
Changes in the law and in society are inextricably linked. The most difficult battle to fight is India's patriarchy, marriage institution, and family structure. The majority of marriages in India are 'arranged,' meaning that women have no say and family members consent to the marriage on her behalf. As a result, marriage automatically implies that a woman consents to sexual intercourse, because women have long been viewed as a tool for procreation and extending the family lineage. Section 9 of the Hindu Marriage Act of 1955, which has been hotly debated for years and allows a husband to legally demand sexual access to his wife, is almost always used against married women. That should suffice to demonstrate how little sexual consent women have in their marriages.
In the aftermath of such a tragic incident, it will be extremely difficult for a woman to question the very family structure she is a part of. The perpetrator in this case is her own husband, whether they are in an arranged marriage or not. There will be family interventions and reconciliations that will lead to re-victimization even before she files a complaint.
It's a situation like a double-edged sword. She is forced to question those she loves and respects, which has an impact on the family structure. As a result, adequate precautions should be taken to protect the survivors, as this may result in their abandonment. It is critical to call such a family system into question and to criminalise marital rape because it is no different than when a woman is raped by a stranger. Rape is rape, regardless of who commits it or how old the victim is.