The Marital Rape Exemption
Marital rape refers to the non-consensual sexual intercourse after the marriage of a heterosexual couple, with the female being over 18 years of age (the age clause recently amended in Independent Thought v. Union of India). Marital rape is also decidedly not considered a form of rape in India, and, thus, remains non-criminalized. As a matter of fact, it is listed as Exception 2 to Section 375 (Rape) of the Indian Penal Code, 1860, thereby exempting a case of marital rape from prosecution. With marital rape being a criminal offense in almost every country in the world, India remains a part of the 36 countries yet to criminalize marital rape.
According to UNFPA’s study of Masculinity Intimate Partner Violence and Son Preference in India (2014), a large proportion of women (77%) also agreed that men expect wife/partner to agree when they (men) want to have sex’. The same survey observed that 57.5% of men and 48.8% of women believe that a woman cannot refuse to have sex with her husband, and it is misconceptions such as these make way for marital rape.
Value of a Woman’s Agency in the Indian Society- Then and Now
“Non-consensual” or “unwilling” sexual intercourse between a man and a woman- does this not sound disturbingly similar, if not identical, to the concept of rape? Apparently not, with the variable factor being your marital status. India- being a patriarchal society almost to a fault- assumes that a woman’s consent for engaging in sexual acts with her husband after marriage is perpetually implied. This completely bypasses a woman’s agency- her explicit will and consent, free from any external influences.
This concept is influenced by the fact that the IPC was drafted nearly 2 centuries ago, when India was colonized by the British. By that point in time, the position of woman in society was reduced to that of chattel- she was not an independent legal entity and was, thus, not capable of free consent. Her worth in society was gauged by the man she married, and any legal documents were signed by her husband on her behalf, in accordance with the Victorian ‘Doctrine of Coverture’.
Today, nearly 2 centuries and a whole lot of progress in women’s rights later, marital rape is yet to be criminalized in India, directly contradicting laws such as Protection of Women from Domestic Violence Act, 2005, as well as the fundamental human rights enshrined in Article 14 (equality before law), Article 21 (right to privacy, sanctity of females and to make choices related to sexual activities) of the Constitution of India, Article 1 (which lays emphasis on women’s bodily autonomy irrespective of their marital status) of the CEDAW, which India is party to. CEDAW has also suggested removing the marital rape exception from the IPC.
- Independent Thought v. Union of India
This case played a monumental role in altering the definition of marital rape by highlighting the fact that Exception 2 to Section 375A of the IPC stated if a girl child between 15 and 18 years of age is married, her husband can have non-consensual sexual intercourse with her, without being penalized under the IPC, only because she is married to him and for no other reason, despite almost every statute in India recognizes that a girl below 18 years of age is a child, which is why the law penalizes sexual intercourse with a girl who is below 18 years of age.
However, on October 12th, 2017, the two-judge bench, through two concurring opinions, read down Exception 2 to Section 375 IPC because of its arbitrary nature, because it violated Articles 14, 15 and 21 of the Constitution of India, and also because it was in violation of POSCO Act, 2012- and raised the age of consent to 18 for the purpose of the Exception. It also called for legal reforms to prevent and address violations of girls’ rights due to child marriage.
Why Marital Rape is Normalized, Not Criminalized
To conclude, the ‘marital rape exemption’ has been frequently and widely abused and misused by men in India, and then swept under the rug because it entails no legal consequences. Some flimsy excuses given by people who stand against the criminalization of marital rape include:
● The Indian Culture
Some believe that criminalizing marital rape clashes with the cultures and traditions in India. It seems that the Indian culture propagates the duties of a “good wife”, which also seems to include prioritizing her husband’s wishes over her own, thereby furthering the concept of implied consent. What they really mean is that they want to use the “Indian” culture to maintain the patriarchal structure of family dynamics, male supremacy, and ownership over the female body. This “Indian” culture of patriarchy is nothing but disguised misogyny and sexism, which has seeped into every aspect of our lives- moral, social, political, marital, and even legal. The reinforcement of this toxic culture is anti-progressive and harmful to individuals as well as society at large.
● The Institution of Marriage
The Supreme Court considers protecting the sacred institution of marriage to be more important than criminalizing marital rape. This is also the same sorry excuse given by the society to partners seeking divorce or separation, stressing on conjugal rights, and “fixing” relations in order to uphold the institution of marriage over the personal and mental well-being of individuals.
● “Women will misuse any law against marital rape”
A personal favorite, this argument tries to convince people that if given the opportunity, women will misuse and manipulate laws to their favor. India’s current situation never looked more similar to Victorian England- wherein women who tried to educate themselves accused of witchcraft, and were tried for and publicly burnt and executed- the only difference being that those women only sought education, and ours seek prioritization of free consent. It seems as if the struggles faced by women who’ve only ever wanted to be treated as equals have not changed much at all.