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Marital rape has been criminalised in a large majority of countries, except in 36 countries. India is one of them.
Marriage is defined by the Cambridge Dictionary as “a legally accepted relationship between two people in which they live together, or the official ceremony that results in this.” Nowhere has it been implied that marriage gives a man leave to violate his wife or indulge in sexual acts without seeking consent. This is the crime of marital rape.
The Indian Penal Code (IPC), established by the British colonial government in 1860, deals with rape and sexual assault in Section 375, which highlights circumstances where sexual intercourse counts as rape. However, there’s an exemption to this law where “sexual intercourse by a man with his own wife, (the wife not being under fifteen years of age), is not rape.”
In India, providing legal protection to married women suffering sexual assault from their husbands has far-reaching consequences.
The IPC has a section dedicated to offering protection to women against cruelty by their husbands and relatives. Section 498A of the code states that punishment for this crime “may extend up to three years and shall also be liable to fine.” In 2020, more than 100,000 cases were registered under this section. However, more than 530,000 cases are still pending as of 2018 and this number is consistently increasing. Furthermore, there were only 4,982 (13%) convictions.
In India, providing legal protection to married women suffering sexual assault from their husbands has far-reaching consequences. Monika Arora, India’s Supreme Court advocate, told the Times of India that it had to be ensured that marital rape does not end up destabilising the institution of marriage or become an easy tool for harassing the husband.
Section 498A has been dubbed by the Bombay High Court, the highest state court in the state of Maharashtra, as a tool to “make vague and omnibus allegations against every member of the family of the husband.” But this claim is far from substantiated in the data. A low conviction rate does not equate to a high number of falsified charges. Other factors, such as social pressures against women to report the crimes and to give accurate witness statements, could explain the low conviction rate more accurately.
‘Continued resistance to remove marital rape exemption from the statute books continues to show a patriarchal mindset.’
Many highlighted how, the exemption granted to marital rape in Section 375, is in conflict with the fundamental rights granted to each Indian citizen. A junior lawyer working at the Supreme Court, speaking under anonymity to The Quint said that the exemption stands on problematic grounds which goes against the ‘Right to Equality’ under Article 14, which guarantees equality to every Indian citizen in the eyes of the law. However, in this case, the law considers the testimony of a married woman lesser than that of her husband.
Amita Pitre, Lead Specialist in Gender Justice for Oxfam India, said to Quint that Section 498A and the Protection of Women from Domestic Violence Act (2005) already criminalises sexual violence. However, she also said that consistent resistance to remove marital rape exemption from the statute books continues to show a patriarchal mindset: “The State is making an assertion that it does not want to recognise marital rape…”.
This begs the question: would deleting the exemption change the state of affairs on the ground? Flavia Agnes, a women’s rights activist and lawyer, believes that the conversation over this exemption has a tendency to overshadow the outsized reality of women suffering from domestic violence. She cited a 2011 study conducted by the International Center for Research on Women, which highlights that one in five men had admitted to coercing their wives into sexual acts, as well as 65% of men believing that there are times when women deserve to be beaten.
Constant conversation and education about the impact of exempting marital rape from legal recourse is the only way to move forward.
However, tackling the exemption can serve to protect the bodily autonomy of women and highlight the absolute impermissibility of marital rape. In a 2015 article, Vasanthi Venkatesh and Melanie Randall wrote that “criminalising spousal sexual assault repudiates the view that a woman becomes a man’s property upon marriage, and fundamentally challenges traditional and patriarchal social norms that confer upon men unlimited rights of sexual access to the women who are their spouses.”
Thus, it remains imperative to continue challenging this exemption. Constant conversation and education about the impact of exempting marital rape from legal recourse is the only way to move forward. “Too many countries fail to protect married women and fail to observe their due- diligence obligations by persisting in inadequately criminalising, or not criminalising at all, this form of violence against women,” added Venkatesh and Randall. “These are legal gaps that must be closed as a crucial step towards protecting all women from gendered violence.”
- ‘Marriage’, (The Cambridge Dictionary, 2021)
- Section 375 in The Indian Penal Code, Central Government Act
- Section 498A in The Indian Penal Code, Central Government Act
- ‘Crime in India 2020’, (National Crime Records Bureau, 2020)
- ‘The Conviction rate of Sec 498A cases falls as Conviction rate of IPC crimes increases’, (Factly, 2020)
- ‘Times Face-Off: Should it be a crime for a man to rape his wife?’, (The Times of India, 2021)
- ‘Section 498A being misused to implicate husband’s entire family: Bombay high court’, (Hindustan Times, 2020)
- ‘Indian men can ‘lawfully’ rape their wives: when will that change?’, (The Quint, 2021)
- The Protection of Women from Domestic Violence Act 2005, Central Government Act
- ‘Gender Equality: Indian Men’s Attitudes Complex’, (ICRW, 2011)
- ‘The Right to No: State Obligations to Criminalize Marital Rape and International Human Rights Law’, (ResearchGate, 2015)
Article by Tanishk Saha