Licensed Violence, Immunized Criminality – The Legal Shield Of Marital Rape In India

Despite the spiraling urge for women’s rights and empowerment, India’s political system remains committed to its decriminalized status of marital rape, placing itself in a list of countries much in disrepute for negligence of citizens’ rights. According to the National Crime Records Bureau’s ‘Crime in India’ 2019 report, a woman is raped every 16 minutes. Every four minutes, she is a victim of cruelty by her in-laws. The National Family Health Survey of 2015-16 suggests that an estimated 99.1 per cent of sexual violence is unreported. On an average, an Indian woman is 17 times more likely to succumb to sexual violence where the perpetrator is her husband. A study by the United Nations Population Fund noted that more than two-thirds of married women in India, between the ages of 15 to 49, have been raped or forced to provide sex. In 2013, the United Nations Committee on Elimination of Discrimination Against Women (UNCEDAW) recommended that marital rape should be punishable under the Indian Penal Code. The same year witnessed nationwide protests, which sparked off with the rape and homicide of a paramedical student in Delhi.

The precarious status of women in Indian society, though not something new, was exposed to the world as a shocked Indian government, caught up in this frenzy, resorted to amendment of existing rape laws. Post the enforcement of the new law, ‘rarest of the rare’ cases of rape could invite death penalty. Yet certain clauses reflected India’s reluctance to carry out the death penalty. Ultimately, ‘the rarest of rare cases’ is left to the judiciary to interpret, transforming the death penalty to a futile deterrent.

Even if not sentenced to capital punishment, rape laws provide some (at least in theory) security to Indian women. But any addition of the prefix ‘marital’ before the same act, instantly pushes the offender outside the ambit of the legal framework. The Verma Committee, constituted in the aftermath of the Delhi rape case, among other recommendations, suggested that the immunity against marital rape exception should be repealed. However, during the Law Reform Process in 2013, the then Union Law Minister Ashwani Kumar maintained that marriage in India was fundamentally different from the West.

In the Indian context, marriage was not viewed as a social contract but as a religious sacrament. The divinely ordained marriages in India and the rights and obligations of spouses in conjugal relations were immune from interference by criminal law. In patriarchal India, husbands cannot be rapists.

Even worse, victims of rape are married off to the rapist, leaving a woman to forge a lifelong partnership with the very man who raped her. An exception to the immunity of marital rape is Section 376A by which sexual intercourse by a man with his wife, if separated, was liable to be punished with imprisonment and a fine or where the girl was below fifteen years of age. Marital rape can be a valid ground for divorce in a civil court, but cannot be tried in a criminal court. Judges continue to interpret the Hindu Marriage Act within the framework of marriage as a sacrament. The consent of wives is subordinated to the conjugal rights of husbands. The consent of parents to the marriage is considered as sufficient proof of consent of the parties to the marriage. And a woman’s consent to marriage is deemed as her consent to sex. This assumption of India’s patriarchal fabric, of women as a property of her husband, though challenged by feminists, have not yet resulted in any affirmative legal change.

Article 1 of the UNCEDAW defines violence against women as an ‘act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.’ Article 14 and Article 21 of the Indian Constitution guarantees the Fundamental Rights of citizens, which under Article 32 are enforceable in court. India’s apex court has upheld the freedom of the women to make choices related to sexual activity under the purview of Article 21. Seen in this framework then, Section 375 (which violates the Right of Married Women to have choices in terms of sexual protection from her husband) of Indian Penal Code is inconsistent both with these principles and the provisions of UNCEDAW.

Given the ever-increasing violence against women, the bulk of which is experienced in the domestic space, India needs to immediately criminalize marital rape. In India, despite legal security, domestic violence goes unreported and dowry laws are reduced to a mockery. Legalized patriarchal exploitation is aggravated by the non-existence of laws to punish offenders of marital rape, which accentuates the asymmetric relations between the husband and wife.

Particularly important is to educate the women, who often become habituated with marital rape, not recognizing it as sexual violence. Given the socialization of Indian women, which is inherently patriarchal, women are actively encouraged to endure conjugal violence at the hands of her husband and/or her in-laws. They are discouraged to step out of abusive relationships. The legal system grants explicit immunity to the husband to force his wife into sexual intercourse, assuming the ‘implied consent’ of the wife. Criminalization of marital rape is imperative, accompanied by a corresponding change in the attitudes of the law-enforcement agencies, which often function as agencies of patriarchy.

Sucharita Sen


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