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It is embarrassing to any right-thinking person to read that since January 7, a two-judge bench of the Delhi High Court has been conducting daily hearings of a clutch of petitions asking for the marital rape exception under the Indian Penal Code to be struck down. India remains one of the few countries in the world that does not treat non-consensual sex within marriage as rape. One of the primary issues being considered is whether marriage gives the husband an expectation of sexual relations and if there is implied consent for sex by the wife.

Four years after the Supreme Court referred to Justice J.S. Verma’s committee’s recommendation to make marital rape a crime, Indian courts continue to take views on marital rape that are the polar opposite of each other. The recent response from courts to complaints of marital rape has been contradictory. When the Kerala High Court backed marital rape as a valid ground for divorce, a court in Maharashtra gave anticipatory bail to a man while concluding that forcible sex with his wife was not an “illegal thing” though she said it left her paralysed.

Section 375 of the Indian Penal Code 1860 says that sexual acts by a man on a woman against her free will or consent would constitute rape. However, there are two exceptions to this. The first exception says that “a medical procedure or intervention shall not constitute rape”.As per the second exception, “sexual intercourse or sexual acts by a man with his own wife” when the wife is above 18 years of age would not constitute rape. It is this provision that is being constitutionally tested. The petitioners want the exception to be struck down in totality, on the grounds that this exception violates the fundamental rights of married women.

The government has been at best ambivalent and at worst, obscurantist. The former Minister for Women and Child Development, Ms. Gandhi had said while in office that ‘marital rape’ cannot apply in India because of factors like illiteracy, poverty, social customs, religious beliefs, and the “sanctity” of marriage. How are we to understand this? That it is okay for a man to sexually abuse his wife because they are poor? Because they are illiterate? Because their marriage is solemnized by a religious ritual? Invoking arguments of destitution, religious belief and social custom can result in justifying several regressive practices that have rightfully been thrown out by law. In fact, it is because we are a country still terribly hobbled by ignorance and custom that it becomes even more important to provide legal protection for women.

Marriage in India is, among other things, a sexual contract because it gives the man implied consent to sex in perpetuity. It reinforces the man’s “ownership” rights over the wife. Refusing to criminalise marital rape is to accept that sexual coercion against a woman, so long as it is within a marriage, will be endorsed by both government and society. In 2011, a survey in India revealed that one in five men have forced their wives to have sex.1 More than two-thirds of Indian married women between 15 and 49 years old claimed to have been beaten or forced into sex by their husbands.2 In another study,3 it was found that one out of seven married women in India has been raped by her husband at least once.4 Women cannot report these rapes because the law does not acknowledge this as a crime. The International Institute of Population Sciences claimed that 26 percent of women in Pune, 23 percent in Bhubaneswar, and 16 percent in Jaipur often have sex with their husbands against their will.

Societies such as India that condemn and penalise sex outside of marriage often force men into marital relationships only for free access to their wives which puts women under incredible sexual threat. To say that the institution of marriage will be threatened by such a law is to either underestimate the very real affections, bonds, and negotiations that hold good marriages together despite deep disagreements and differences, or to accept that sexual abuse and coercion is so common in marriages that no man dares risk such a law.

The Indian government has suggested that those seeking to stop women from being raped by their husbands were “blindly” following Western customs. The government is arguing that since a majority of people in India are illiterate, uneducated, poor, conservative, and religious — unlike in America — they believe that a husband cannot rape his wife because a good Indian wife will dutifully consent to her husband forever. Then the government argues that if in such circumstances, they criminalise marital rape, a majority of marriages will fall apart presumably because women will stand up to their rapist husbands (who will then become criminals in the eyes of law) and avail of the legal recourse they have to seek justice and protection. The idea that once a woman is married, she hands over never-ending, continuous sexual consent to her husband is a deeply embedded one in our society.

Indian laws still date back to the 1700s, when Matthew Hale of England had declared that “the husband cannot be guilty of rape committed by himself upon his lawful wife. Rape is rape, irrespective of the identity of the perpetrator, and the age of the survivor. A woman who is raped by a stranger lives with a memory of a horrible attack; a woman who is raped by her husband lives with her rapist. Our penal laws, handed down from the British, have by and large remained untouched even after 73 years of independence. But English laws have been amended and marital rape was criminalised way back in 1991. Violence, sexual violence in particular, is pervasive, common, and a critical instrument in the subjugation of women and their confinement to private spaces. Meanwhile coming back to the Delhi High Court Hearings as recently as February 4th, the Union Government submitted to the Court that it defer the ongoing proceedings, seeking time to carry out a consultation process with all stakeholders including all the State governments. Clearly, the writing is there for all to see.

Dr Shantanu Dutta , a former Air Force doctor is now serving in the NGO sector for the last few decades.


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