Shocked, Why isn’t Marital Rape a Crime in India

The subject of today’s post is a term that most of us in India refuse to identify as a crime: Marital Rape.

Shocked, Why isn't Marital Rape a Crime in India
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News on ‘rape’ has become a daily occurrence, to say the least. It is often felt that a news bulletin is not complete if an incident of rape isn’t reported.

In the recent years, especially since the rape of the physiotherapy student Nirbhaya in December 2012, rape has been treated as a crime as severe as it truly is. Before this, the incident would usually be hushed up and tried to be kept under the wraps. Now, I will not say that every woman who gets raped stands up for what happened to her and seeks justice. Or for that matter, even receives anything close to true justice. But incidents are reported more now than they were before.

But it is marital rape which is the subject matter of the article today.

What is Marital rape?

I wouldn’t be surprised if many of you are not familiar with the word. It’s easy enough to derive its meaning from the word itself, however, let’s go back to the Oxford Dictionary.

Marital rape is defined as “rape committed by the person to whom the victim is married”[2].

For most people, the concept of marital rape is either unheard of, or unfathomable. After all, one of the biggest reasons behind the institution of matrimony is procreation.

Why is marital rape wrong?

Let us not forget that in India, and most other countries, we follow Patriarchy. The male leads the house. But in India, much more than other such countries, a woman is often considered to be the property of her father before her marriage, to be subsequently handed over to her husband upon marriage. In this background, marital rape is not a concept per se, since the woman is the property of her husband.

I’d like to take the example of a movie, Lipstick Under My Burkha. Most people have heard of this movie in the last 4-5 months given the attention it garnered over the Central Board of Film Certification’s denial to grant it a release date. That, however, is not my reason behind bringing it up. In the movie, the husband of one of the 4 central characters works in Dubai and comes home every few months where he engages in sexual activity. What we notice in the movie is that most of the activity is undesirable to the woman, her husband forces himself upon her.

Shocked, Why isn't Marital Rape a Crime in India
Image Source : pixabay.comp

Many would find my terminology crude, perhaps even unwanted, however, this is perhaps the most simple way to explain the concept of marital rape.

In plain words, marital rape is when a husband engages in sexual activity with his wife, without her consent, by forcing her or threatening her.  A woman, in Indian marriages, rarely has any will or control over her sexuality. Unless, of course, it is corresponding to her husband’s.

With this background, I will answer the question as to why marital rape is wrong.

Rape is not, as most people believe, an act of violence against a woman, it is much more than that. A rape, is the violation of her fundamental right to life, right to personal liberty, right to dignity and right to privacy. So the existence of any relationship between the victim and the perpetrator does not change the violation. When a husband violates his wife by sexual activity against her will, he is in breach of trust and integrity. Studies have also shown that marital tends to be more traumatic for the victims on both psychological as well as physiological parameters. Here, not only has the woman been violated, she has been violated by someone she trusts, someone who is supposed to be her partner.

Is marital rape a crime in India?

The single word answer to this question is NO.

The Indian Penal Code clearly excludes marital rape from the section.  Though marital rape is a punishable offence in at least 100 countries.

In a similar manner, under divorce laws in India (for most religions), conjugal rights are given special importance. So much so, a woman’s denial to sexual intercourse can be a sufficient cause for the husband to appeal for divorce. Under Section 9 of the Hindu Marriage Act, If a spouse withdraws from the other without reasonable cause, the aggrieved party can approach the court for restitution of conjugal rights. This means the court could make it mandatory on the husband and wife to live together.

With all due respect to the legislations in place, the fact of the matter is that laws for sexual offences in India are outdated, perhaps even archaic. We have been a nation which is inhabited by religions that worship women and treat them as goddesses. And yet, perhaps the most vulnerable section of the society consists of women. In their vulnerability, we take away the sanctity of the one institution which is supposed to protect them; marriage.

The non-existence of protection against this heinous offence makes way for increased occurrences and decreased reporting. Women often leave it unreported out of a sense of loyalty to the family, fear of the husband and many times even due to financial dependence on him. But I believe that the biggest reason the lack of law altogether. You see, under the current law, it isn’t wrong and therefore there’s nothing to complain against! According to studies, 10-14% married women have either been raped or attempted to be raped by their husband[4].

The only exception where marital rape is an offence is wherein the wife is under 15 years of age (which is also a case of child marriage). And even there, the punishment is just a shameful 2-year imprisonment if the wife is between 12-15 years of age and imprisonment from 7 to 10 years if the wife is under 12 years of age.

A judicial perspective

The common man has always turned to the judiciary for justice when all else fails, the judiciary stands to protect the victim.

However, in the matter of marital rape, the Judiciary fails.

Over the course of various court cases and judicial proceedings, the courts have repeatedly failed to criminalize marital. Be it in a cases old as that of State of Maharashtra vs. Madhukar Narayan Mandikar[5] or as recent as Tuesday, the 8th of August 2017. In the most recent such incident, a Supreme Court Bench comprising Justices MB Lokur and Deepak Gupta have said,

“Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape. Therefore, it cannot be considered as a criminal offence.”

In the instant case, the bench was addressing a plea that questions the constitutional validity of the provisions of law that allow a man to have sexual relations with his wife even if she is aged between 15-18 since the law only protects wives under 15 years of age.

To conclude

I’d just like to say that the judiciary’s job, strictly speaking, is to interpret the law, so while the fault lies with the law, it is not absolute. It can be said that the fault is shared by the legislature and the judiciary equally. One refuses to make a law and the other refuses to compel the legislature to make such a law. Women who face rape by their husband are living under a worse crime since their assailant is in the bed next to them, constantly, and never to let her forget what she had to go through.

My sincere hope is that the matter is addressed at the earliest possible, so that those who have been safe until now, can continue being so. And those who haven’t been so fortunate, are able to do something about their trauma.

 

 

[2] Oxford Dictionary. Available at https://en.oxforddictionaries.com/definition/marital_rape.

[3] Niharika Kumar. Available at https://www.lawctopus.com/academike/marital-rape/.

[4] Box, S., Power, Crime and Mystification, (London Tavistock Publications, 1983), p.122. Diana. E. H. Russell, Rape in Marriage, Indiana University Press, Bloomington, 1990.

[5] AIR 1991 SC 207

Posted by Harshita Chaarag

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