Indian men can legally rape their wives. Marriage is a licence to rape in India. No doesn't mean no in a marriage in India. Not all rape is rape in India. Let's now say it this way — India's rape laws don't apply if a man rapes his wife.
Section 375 of the Indian Penal Code defines rape as “non-consensual sexual intercourse with a woman”. However, it exempts the husband from any penal consequences if he forces intercourse on his wife without her consent, given that his wife is above the age of 15 years. The 15 years bit was written down to 18 years by the Supreme Court. Marriage in India under the law means irrevocable implied consent.
The latest decision by the Chhattisgarh High Court, found atrocious by many, shouldn't surprise. After all, the learned Chhattisgarh High Court judge NK Chandravanshi was only quoting from the law of the land when he cleared a man, accused of raping his wife, with the verdict that sexual intercourse by a man with his wife is not rape — even if it is by force or against her wish.
Strangely, High Courts in India have often differed on the legality and definition of marital rape. Last month, the Kerala High Court ruled that marital rape, though not recognised under the penal code, could still be considered grounds for divorce as a form of cruelty. The Kerala High Court noted, “Treating wife's body as something owing to husband and committing a sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompasses bodily integrity, and any disrespect or violation of bodily integrity is a violation of individual autonomy.”
Juxtapose this with the Chhattisgarh High Court verdict and you find yourself in a legal paradox.
In 2018, the Gujarat High Court had ruled that non-consensual intercourse by a husband was not rape. The same year, the Delhi High Court observed that both men and women had a right to say “no” and that marriage did not mean consent.
While one would think the Supreme Court would have given more clarity and stepped into the sexist cesspit of misogyny giving women legal protection. What the apex court has done over decades is look the other way and fail abysmally to protect the rights of women.
In March this year, an open letter was penned by over 5,000 women rights activists in India asking the then chief justice SA Bobde to step down and apologise. What the chief justice had done to invoke such disgust was ask two questions. Justice Bobde had asked a man accused of raping a minor girl if he was ready to marry her. The other appalling question in a different case of marital rape from the chief justice was: “When two people are living as husband and wife, however brutal the husband is, can the act of sexual intercourse between them be called rape?”
Do such questions give legitimacy to sexual violence in a country that is usually over-eager to normalise it? I'm going to leave this question open-ended because while the legality of marital rape is clear, the matter of contempt of court is rather gray.
The best that the highest court in our country has done is to rule in 2017 that sex with a minor wife will amount to rape. It watered down the exception to section 375 of the IPC which said sexual intercourse by a man with his wife not under the age of 15 would not amount to rape. All that the Indian judiciary has done is raise the age from 15 to 18. In effect, if your wife is 18, you have a hall pass for spousal rape.
The executive and the legislature have not been very different from the judiciary. Marital rape has been criminalised in more than 100 countries. But India stands tall in the luminous league of about 32 countries where marital rape is not criminalised. Pakistan, Bangladesh, Afghanistan, Botswana, Iran, Nigeria and Libya are some of the esteemed members of this extraordinary league. Our penal laws, handed down from the British, remain cast in stone, while the English themselves criminalised marital rape way back in 1991. An irony long eclipsed by the great Indian patriarchal mindset.
In 2013, A UN committee recommended that the Indian government criminalise marital rape. The JS Verma committee set up in the aftermath of the Nirbhaya protests also recommended the same. There have been many committees, many reports, but the fine print remains the same. Successive governments in India have shown no will or interest, remaining in denial of women's right to their bodies after marriage.
It is all but a little disconcerting that our lawmakers need to be made to understand that a marriage should not be viewed as a licence for the husband to rape his wife, but history stands testimony it has been a big ask.
The Law Commission in its 172nd report had opposed criminalising marital rape on the ground “that it may amount to excessive interference with the marital relationship” and said forced sexual intercourse by a husband can be treated as an offence just like any other physical violence by a man against his wife.
While a parliamentary standing committee has said if marital rape was made a crime, the family system will be under stress and it could lead to practical difficulties.
In 2016, the government told the Rajya Sabha that the concept of marital rape was an international one and cannot be applied in the Indian context due to factors of poverty, illiteracy, social customs, religious beliefs and the ‘sanctimony of marriage'
In 2018, a private Bill called the Women's Sexual, Reproductive and Menstrual Rights Bill, 2018, introduced by Congress MP Shashi Tharoor in the Lok Sabha, sought to criminalise marital rape. The bill lapsed after failure to garner support from the government.
Article 14 of the Indian Constitution ensures that “[t]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Although the Constitution guarantees equality to all, Indian criminal law discriminates against women, women who are raped by their husbands.
Cringe-worthy, yes, but we are a country that mostly believes that once married, an Indian woman, along with much else, hands over a never-ending, irrevocable and perpetual consent to her husband that should only be revoked till death do them apart. Courtesy: Indiatoday
