Should there be a law on marital rape? by Malvika Mahajan

We’ve all been asking ourselves this question for a really long time. Let me tell you that you can answer this question just by asking a few more questions?

Firstly, what is rape and how is it different from marital rape? Section 375 in the Indian Penal Code paints a rosy picture for us clearly stating the definition of rape that is as follows, a man is said to commit ‘rape’ who has sexual intercourse with a woman without her consent, or by putting her or someone whom she is interested in fear of hurt or death, and many other criteria’s. But the one criterion we should be focusing on is the exception; that states, sexual intercourse by a man with his wife is not rape. Why is this so? It is believed that when a woman agrees to marrya man, she simultaneously agrees to have intercourse with that man. This exception portrays the archaic views of the Indian society. This states that the law assumes that the marriage is done by agreement and not fraud or force. It also assumes that husband and wife have made conscious decision about sexual relation. This assumption is illogical as society pressurizes a woman to have kids and she may be forced into such decisions.

The exemption excludes husbands from being sexual offenders. And encourage husbands to enter into forceful sexual intercourse, as they know that their acts are not penalized under any law. Women will find it very difficult to escape such violent conditions as they are financially and legally tied to their husbands. Article 14 guarantees equal protection to any person within the territory of India. But the exception in section 375, discriminates a wife from the protection of rape.

In K.S. Puttuswamy v. Union of India, Supreme Court stated that right to privacy includes decisional privacy that is the ability to make intimate decisions that is, decisions related to sexual or procreative nature in relation to intimate relations. The Supreme Court failed to distinguish between rights of married woman and unmarried woman and there is no rule that states that this right to decisional privacy is lost after marriage. Thus Article 21 now recognises the right of women to abstain from sexual activity irrespective of their marital status. Not recognising marital rape violates Article 21 as women should be allowed to take their own decisions and report any abuse when stopped from doing the same. But in reality, it sends a message that men are entitled to their partner’s body just because of marriage and women are reduced to baby producing machines.

If you still don’t want to consider my argument. An evaluation of the Supreme Court’s argument may help. Which brings me to the second question which is what India’s views on marital rape are currently?

Now, the case presented before the Delhi High Court stated two reasons against the criminalization of marital rape. First, that marriage is a sacred institution and criminalizing marital rape would lead to destabilization of society and the institution of marriage. Think rationally and tell me would you ignore such heinous crimes in society just by claiming marriage as a sacrament. If the government can recognise laws of domestic violence and divorce which also harms the institution of marriage, why be ambivalent towards marital rape.

Second argument by the court was that the law of marital rape will be misused, because of fraudulent cases being filed against the husband. Most laws can be misused in society; this kind of mindset about misuse only exists in gender laws. The Centre also said that to have a law on marital rape the test of reasonableness should be applied. That is, what may appear to be marital rape to a wife should be subject to the eyes of a reasonable person. Let me put this simply, in an Indian society, a reasonable person is a man who judges the conduct and state of women and she loses all her reproductive autonomy and rights.

In the case of State of Maharashtra v. Madhkar Narayan, it was held that “every woman is entitled to her sexual privacy and it is not open to any and every person to violate her privacy as and when he wishes.”

Also, in the case of Vishakha v. State of Rajasthan, it was held that “there exists a right of privacy to get into a sexual relationship even inside a marriage.”But all this is violated due to the exception in Section 375 of the Indian Penal Code, as stated above.

According to Morton Hunt, an American Psychologist, ‘the typical marital rapist is a man who still believes that husbands are supposed to “rule” their wives. He asserts in the most emotionally possible way that he is the ruler and she is the subject’.

Ever thought what happens if you don’t have a law for marital rape? Let me paint you a picture. India has long been established as a patriarchal society. And due to this women were not given an individual identity, let alone rights. The Doctrine of Coverture existed which merged the identities of husband and wife. Women were treated as property; first of their father and later of their husband. And it is from this assumption that marital rape is not seen as a crime because women are assumed to be men’s property. Not having a law on marital rape strengthens this idea of women being non-existent in society.

Men are not jailed due to exception laws of marital rape. And marital rape is not a ground of divorce. So the wife will not feel safe in her own house. What remedy does she have for this? Is she to continue living in a house where she doesn’t feel safe?

Women have predominantly recognized the generative nature of laws in the country and its consequences to not conform to the norms. The inability of law is depicted in its inability to deal with marital rape. And this in turn portrays that law predominantly serves the dominant class at the expense of women. The battle with the societal norms and structure continues and this is clearly depicted by the institutions who claim to be the epitome of equality.

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