Why It’s Still Legal For Indian Men to Rape Their Wives?
This italicised exception appears in Section 375 of the Indian Penal Code, which defines rape as a crime. A man commits rape if he engages in sexual intercourse with a woman without her consent or while she is a minor. (In India, the legal age of consent is 18.) However, Exception 2 to Section 375 exempts unwilling sexual intercourse with a wife over the age of fifteen from this definition of rape, making it legal for men to rape women over the age of fifteen who happen to be their wives.
Rape is a crime in most countries around the world, and most countries recognise it as such. So, what is it that is holding India, a burgeoning 'superpower,' back? A careful examination reveals several factors: an antiquated IPC dating back to the Victorian era; a rigidly patriarchal society that suppresses women's voices and agency across India's many religions; and a culture in which marriage and family, in the dated sense of the words, still hold utmost importance as the building blocks of society.
The Union Government, however, is arguably the most obstinate impediment to India criminalising marital rape. Despite the fact that there are several writ petitions before the Supreme Court and various high courts at any given time, filed by individuals and civil society organisations challenging the marital rape exemption to Section 375 — the government has continued to shield men who rape their wives by citing the same few reasons over and over. Misogyny and misconceptions are the barebones of the reasons, which can be boiled down to a single critical glance.
Argument 1: It’s against Indian culture
According to The Times of India, former Chief Justice of India Dipak Misra stated in August 2019 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."The basis of this argument is that marital rape cannot work in India in the same way that it does in the West due to significant cultural and socioeconomic differences between the two regions. The argument is that social customs and religious beliefs, combined with staggering illiteracy, create an environment in which marital rape cannot be criminalised because people are not prepared for it.
According to The Times of India, the Indian government suggested that those seeking to prevent women from being raped by their husbands were "blindly" following Western customs: "This country has its own unique problems due to various factors such as literacy, lack of financial empowerment for the majority of females, societal mindset, vast diversity, poverty, and so on, and these should be carefully considered before criminalising marital rape."
Translation? The government claims that because the majority of Indians are illiterate, uneducated, poor, conservative, and religious, unlike in America, a husband cannot rape his wife because a good Indian wife will dutifully consent to her husband forever. This, according to the government, is a unique barrier that India faces in criminalising marital rape — by admitting that lakhs of men violate their wives' sexual consent on a daily basis based on this mindset, and that what they're doing is, in fact, the crime of rape. The government then claims that if they criminalise marital rape in such circumstances, the majority of marriages will fail, presumably because women will stand up to their rapist husbands (who will then become criminals in the eyes of the law) and use the legal recourse they have to seek justice and protection.
But, if it is the fear of marriages failing that prevents the government from criminalising marital rape, then it acknowledges, in a way, that given legal recourse and protection, women will want to end the sexual violence they face on a daily basis within their marriages. At this point, it is critical to ask: whose rights is the government protecting by placing such a high value on marriage and family and promoting the status quo? Is it the husbands who rape or the wives who are raped?
Only the Supreme Court agrees that criminalising marital rape poses no threat to marriages. The Court specifically stated in Independent Thought v. Union of India that marriage is personal and that nothing short of the Indian State criminalising marriage itself can destroy the institution of marriage. It argued that if divorce and judicial separation haven't destroyed the institution of marriage, criminalising marital rape won't either. Surprisingly, the Gujarat High Court recently ruled that the non-consensual act of marital rape violates the trust and confidence within a marriage, and that marital rape is what has harmed the institution of marriage.
If criminalising the violent rape of two-thirds of married Indian women destabilises marriage and family, so be it.
Argument 2: Once married, women’s perpetual consent is implied
The idea that once a woman marries, she gives her husband never-ending, continuous sexual consent is deeply embedded in our society, as evidenced by a cringe-worthy and concerning vox populi poll. ScoopWhoop conducted recently a marital rape survey on the streets of Delhi.However, laws are supposed to be above and beyond people's prejudices, acting as a moderator of personal base emotions.
Instead, Indian laws date back to the 1700s, when Matthew Hale of England declared that "the husband cannot be guilty of rape committed by himself upon his lawful wife, because by their mutual matrimonial consent and contract, the wife hath given herself up in this kind unto her husband, which she cannot retract." Another out-of-date justification for not recognising marital rape comes from William Blackstone in 1753, when he defended the common law doctrine of coverture (a married woman's legal status as her husband's property). "[B]y marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage," Blackstone contended.
Even as British law was introduced in England and Wales in 1991, when Lord Keith communicated on behalf of the Court that modern marriage is a "partnership of equals and the wife is no longer considered the subservient chattel of the husband," Indian laws on marital rape remained unchanged.
This, despite a 2017 Gujarat high court ruling that clearly states: "It has long been time to jettison the notion of 'implied consent' in marriage." The law must protect all women's bodily autonomy, regardless of marital status."
Argument 3: Women will misuse any law against marital rape
The union government argued in an affidavit submitted to the Delhi High Court that a law criminalising marital rape could become a "easy tool to harass the husbands," arguing absurdly that "if all sexual acts between a husband and his own wife qualify to be marital rape, then the judgement whether it is marital rape or not will solely rest with the wife." (As should be expected.This argument — that women will falsely accuse their husbands left, right, and centre — has been used repeatedly in support of various domestic violence laws enacted to protect women in India, including the Protection of Women from Domestic Violence Act, the Dowry Prohibition Act, and Section 498A of the Indian Penal Code, which criminalises physical and mental cruelty against a woman by her husband or his family. Except for the low rate of convictions in dowry and cruelty cases, there is no direct empirical evidence for the misuse claim, but we do know that two out of every five women in India are victims of physical, sexual, or emotional domestic violence. Using the number of convictions to assess the reality of the situation is also problematic, because low conviction rates in India are frequently the result of poor investigations, improperly collected or no evidence, and omissions of witness statements, not because women are out to get men.
Even if some women abuse the law, that is what the judiciary is for: to weed out the false cases and dismiss them with appropriate penalties! To quote Justice J.B. Padriwala from the Gujarat High Court, "Let it be stressed that safeguards in the criminal justice system are in place to spot and scrutinise fabricated or false marital complaints, and any person who institutes untrue and malicious charges can be made answerable in accordance with the law.
The misuse argument is also flawed in that it ignores how difficult it is for disadvantaged women to even use, let alone misuse, the marital rape law if it exists. As rape and domestic violence laws demonstrate, a lack of resources, access to legal counsel, and stigma all work against women achieving justice under these laws.
Surprisingly, the cultural argument that criminalising marital rape will not work in India because women are illiterate, uneducated, and impoverished directly contradicts the argument that criminalising marital rape will lead to misuse. If women aren't educated enough to use the law correctly, it stands to reason that they won't be able to misuse the law either.
The only arguments that matter
The arguments supporting the legality of marital rape were dated and violently oppressive, especially when compared to some of the more forward-thinking statements made independently by the judiciary. The facts, logic, and precedents are all there to compel the State to do right by half of India's population, but little will change until the mindsets of those in power change to prioritise a different set of established arguments.Although the Indian Constitution guarantees equality in Article 14, the marital law exception discriminates against women who have been raped by their own husbands by denying them equal protection from rape and sexual harassment.
The Exception to Section 375 divides women into two categories based on their marital status and prioritises unmarried women over married women in protecting them from rape — a direct contradiction to every Indian citizen's right to equal protection under the law. Exception 2 also violates Article 21 of the Indian Constitution, which states that "[n]o person shall be denied his life and personal liberty except in accordance with the procedure established by law."In recent years, as changing circumstances have presented new challenges to citizens' fundamental rights, the Supreme Court has frequently interpreted Article 21 to include, in addition to the literal guarantee of life and liberty, the rights to health, privacy, dignity, safe living conditions, a safe environment, and continuous internet access.
In Suchita Srivastava v. Chandigarh Administration, for example, the Supreme Court stated that the right to choose sexual activity falls squarely within the scope of Article 21's rights to personal liberty, privacy, dignity, and bodily integrity.
In terms of legal precedents, the strongest argument is found in Justice K.S. Puttuswamy (Retd.) v. Union of India, in which the Supreme Court recognised the right to privacy as a fundamental right and specifically stated that this includes "decisional privacy reflected by an ability to make intimate decisions primarily consisting of one's sexual or procreative nature and decisions in respect of intimate relations." Forced sexual intercourse and cohabitation violates this fundamental right. Because this ruling makes no distinction between married and unmarried women, and there is no explicit ruling (thankfully) that says women lose their fundamental right to privacy when they marry — all women have the fundamental right to consent and to say no.
If Indian legislators need help deciding how to codify marital rape as a crime in our laws, consider this advice from the Delhi High Court's bench of Acting Chief Justice Gita Mittal and C Hari Shankar. "Marriage does not imply that a woman is always ready, willing, and consenting [to have sex]." The man will have to prove that she was a willing participant." That's all there is to it.