Marital Rape—Why Is It Still Legal in India?

Marital rape victim Khushbu Saif, along with All India Democratic Women’s Association (AIDWA) and the RIT Foundation, had filed a petition challenging marital rape exception Section 375 which declares marital rape legal (if the woman is not a minor) in Delhi High Court on 17 July 2017. The court ruled against it by using the argument that it can lead to the destabilisation of the sanctity of marriage and would lead to male harassment. The legal status of marital rape in India violates over three different articles of the constitution including the one related to equality and liberty to live one’s life on one’s own terms. But, India still doesn’t believe in giving women the right to say no.

For ages, patriarchy has played an integral role in developing the rules and standards for the so called society’s well-being. These particular set of norms not only favour men as the superior race, but also constrains women from living their lives the way they choose to live. With this mass male dominance comes oppression and exploitation of the supposedly weaker one—women. Patriarchy oppresses women systematically and lawfully. It creates and implements laws to protect the oppressor, while pretending to provide freedom but keeps women’s heads wrapped around baseless laws which come with a list of exceptions. With the second wave feminism, these orthodox views about marriage were disregarded mostly in the west in 60s and 70s. This led to most of the countries worldwide making marital rape illegal.

Marital rape is basically an issue of consent. Earlier, it was believed that a woman once married to a man is supposed to serve him as his beloved and dedicated wife. The law also saw the woman as the property of her father (before marriage) and then transferred the rights of ownership to her husband after marriage. This treatment of women as someone else’s property is one of the baseless logic to the legal status of marital rape. Using the same logic (women as property), men who engaged in sexual act with someone else’s wife was punished. The rape laws were defined not to protect women’s individual rights but to protect the property of the men. A woman’s virginity and chastity were just considered a commodity to be bought and sold. Thus, a husband can’t be penalised for raping his own spouse because that spouse is just commodity, not an individual with defined rights.

Many men really did not understand the meaning and importance of consent. A lot of men even complain about going through the hassle and effort of getting a woman’s consent before engaging in any sexual act. This actually makes us question if men think that marriage is a deal for free and consent less sex. Are men allowed to impose themselves on women behind closed doors? Well, the laws in India do protect these men and allow them to continue doing it. The best way to report a marital rape in India is under charges of minor cruelty and domestic violence which puts the husband in jail for 3 years or so. There is no mention of the term marital rape in the Indian Constitution. The woman’s right to self-determination and the right to make decisions related to her body, including saying no to any sexual act, also came in picture with the same discussion. The fact that before the 20th century rape was considered an attack on the father’s or husband’s property and not considered as a violent attack on women’s dignity and body says volumes about the judicial system we have established worldwide.

Marital rape is not a criminal offence in India, except during the period of separation of the partners. Section 375 of IPC (Indian Penal Code) includes the exceptions to marital rape. It states that sexual intercourse by a man with his own wife, wife not being a minor (under 18) is not rape. This exception clearly undermines the Prohibition of Children from Sexual Offences Act, 2006 and Child Marriage Prohibition. It even screams the callousness of the lawmakers and their perception about this whole institution of child marriage. Experts and lawmakers believe this is a matter of someone’s bedroom and one should not make laws regarding it. It definitely contradicts with the other laws which were being followed in our country like those about LGBTQ rights, same sex marriage, live in relationships etc. If these laws can be amended and change is brought about, why are the lawmakers against this plea of incriminating marital rape?

India is one of the 36 countries which does not categorise marital rape as a criminal offence. According to a survey by National Health and Family Survey from 2015-16, 5.4% of women have experienced marital rape. While statistics prove the existence of marital rape in India, it is still not considered as a crime. Yes it’s true, the numbers are far from accurate only due to under reporting and its incapability of showing the larger extent of this issue. Indian laws define rape as something violent and forced, but marital rape tells us how rape is not just a violent act, it can be committed even just without consent of the individual. This logic is something which is not really understood or accepted by the lawmakers and the Indian society. Until this mentality of subordination of women to men in marriage or any path of life exists, no law amendments can stop marital rapes in this country.

Picture Credits : livemint

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