The Platform

Frank Busch

India will never truly be developed until it outlaws marital rape.

On 11th October 2017, India’s Supreme Court declared that “The exception carved out under section 375 (which defines rape) exempting marital rape for minors is artificial and contrary of Article 21 (right to life) of the Constitution of India.” The criminalisation of sexual intercourse with girls below 18 years of age by their husbands was initially considered to have significance on marital rape laws that do not consider non-consensual sexual intercourse with women by their husbands to be rape. However, following the Supreme Court’s decision to reject marital rape as grounds for divorce, the judgment served to only highlight the stand of the judiciary and the government in its refusal to amend marital rape laws, despite obvious moral and human rights violations in doing so.

The exemption to marital rape under existing rape laws dates back to Coverture, an idea from Anglo-American law, wherein “the husband and wife were considered a single entity: the husband.” Following marriage, the identity of women was subsumed by men. The law exempting marital rape has its roots in Sir Matthew Hale’s statement made in 17th century England – “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract.” Women were treated much like property – an offense against one’s own property is not considered a crime and so it was considered acceptable for men to demand or force sexual intercourse on women.

Considering the English roots of India’s legalisation of marital rape, it is curious to consider the various defences offered by the government to keep marital rape legal, despite numerous petitions and public interest litigations flooding courts challenging the law. The crux of the government’s defence lies on an inherent difference in the culture, tradition, and society of India, in comparison to the West. The law has been justified by the government on numerous occasions – in one instance in 2016 during a discussion in the Indian parliament. The Minister of State for Home Affairs, Haribhai Parathibhai Chaudhary, said, “the concept of marital rape, as understood internationally, is not suitable in the Indian context, due to illiteracy, poverty, social customs and values, religious beliefs and the fact that Indian society treats marriage as a sacrament.” Again in 2017, the government stated that making marital rape illegal will “destabilize the institution of marriage, apart from being an easy tool for harassing husbands.” On another occasion, the government declared that “What may appear as marital rape to an individual wife, it may not appear so to others.”

This view of the government has been adopted despite recommendations to the contrary. Suggestions of the report, “Status of Women in India” by the Pam Rajput committee that advocates illegalisation of marital rape have been ignored – so have the recommendations of the Justice Verma Committee, formed following a gang rape in 2012 in Delhi. Most of the suggestions of this committee were incorporated under the Criminal Laws (Amendment) Act 2013, such as widening the definition of rape to include non-penetrative acts of sexual nature. However, the proposals against marital rape made by the committee were disregarded. The apex court seems to have overlooked the fact that by allowing an exemption for marital rape under rape laws, Article 14 (equality under law) and Article 21 (right to life) of the Indian Penal Code have been violated.

Currently, India is one of 36 countries that permits marital rape. However, even in countries where this type of rape is illegal, the punishment is less severe than for non-marital rape, highlighting the fact that marital rape is not accorded the same level of importance. According to the International Centre for Women (ICRW) and the United Nations Population Fund’s (UNPFA), one-third of husbands have admitted to having sexual intercourse or performing sexual acts with their wives without consent. In fact, husbands who rape their wives are more likely to commit domestic abuse. Considering the effects of marital rape, depression, anxiety, and post-traumatic stress disorder, the pressure for reform is mounting. The desire for change is not limited to India – more cases are being brought to light in countries such as Indonesia and Malaysia about the brutal nature of marital rape where women have no recourse against sexual assault that is both physically brutal and mentally devastating.

Chavaly Keerthana recently graduated from Lady Shri Ram College for Women, University of Delhi. Her interests are public policy.