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“However brutal the husband is...when two people (are) living as husband and wife... can sexual intercourse between them be called rape?”
Chief Justice of India SA Bobde’s observation last week, in a plea filed by one Vinay Pratap Singh accused of rape by a woman who was in a relationship with him for two years, has reignited a longtime debate on marital rape.
India is one of the 36 countries in the world where marital rape is not criminalised. This is despite one in every three women in India, between the age of 15 and 49, who have ever been married, stating that they have experienced some form of violence from their spouses.
To put it simply, India’s rape laws does not apply in cases where the perpetrator is a spouse.
India’s penal laws were handed over by the British. However, with the landmark judgment in R v R case 30 years ago, the United Kingdom determined that it was a crime for husband to rape his wife.
“In that case, the husband argued that marriage provided irrevocable consent. However, the court refused to accept this and convicted him – as the exception to marital rape is a ‘legal fiction under the common law’. The court observed that for a person to be penalised for rape the relationship between parties is immaterial,” the lawyer, who did not want to be identified, added.
But, in India, this remains a grey area.
Multiple petitions have been filed across various courts across the country to criminalise marital rape. Unfortunately, none of them have reaped any benefits yet.
A 2015 petition filed by a woman was dismissed by the Supreme Court, citing that “law shall not change for one woman.” In the Arnesh Kumar v State of Bihar, the apex court held that criminalising marital rape will be the “collapse of the social and family systems”.
A PIL was also filed in the Delhi High Court in January 2015 by NGO RIT Foundation and the All India Democratic Women’s Association, seeking criminalisation of marital rape. The PIL was nearing its completion – with both sides having wrapped up their arguments – when the COVID-19 pandemic struck, interfering with the working of the courts.
In India, rape is not seen as an injury to a woman’s personhood but as a “damage to her family’s honour,” asserted Amita Pitre, Lead Specialist, Gender Justice, at Oxfam India.
Speaking to The Quint, Pitre said that in the eyes of courts and society, women are seen as properties – and marriage is seen as a means to “right all wrongs.”
Elaborating further, Neha Singhal, a senior resident fellow at Vidhi Centre for Legal Policy, said that courts see rape as something that does not happen to married women.
The idea of both elected government and the judiciary is not to “protect” women but to “protect” the institution of marriage, Pitre said.
“When the IPC was amended in 2013, clauses were added to increase age of consent, acid attacks and voyeurism was included as crimes. But the then government clearly stayed away from touching marital rape,” Singhal added.
Most recently, in 2018, a private Bill called the Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018, introduced by Congress MP Shashi Tharoor in the Lok Sabha, sought to criminalise marital rape, among other rights.
However, it lapsed after failure to garner support from the elected government.
Survivors of marital rape rarely want to take action against the accused. But when they do, there are Indian laws that take cognisance of it – the Domestic Violence Act and Section 498A.
The most common remedy used by women is the Protection of Women from Domestic Violence Act, 2005. This Act recognises forced sexual activity as punishable under the Indian law.
However, a magistrate under the law has absolutely no power to criminalise the act of a man raping his wife, neither can the man be sentenced.
“The two important laws in the country already criminalises sexual violence. However, continued resistance to remove marital rape exemption from the statue books continues to show patriarchal mindset. The State is making an assertion that it does not want to recognise marital rape but at the same time there are laws that contradict the stand as well. This also makes it clear that those on the ground have already encountered sexual violence and marital rape in cases – and that this is very much a reality,” Pitre added.
With misogyny playing a central role in such debates, will criminalisation of marital rape even achieve anything?
Madhu Bala of Jagori, an NGO which works to raise awareness about violence against women, said that it will provide women some courage to speak out.
She added that there are many cases where the perpetrator resorts to sexual violence because the wife “wants more.”
Chakraborty, who works with women in distress, said that in her experience, knowledge of law actually deters the perpetrator.
“I have seen it time and again that a potential perpetrator actually takes a step back if there is a law in place and the woman is aware of such law. It actually acts as a deterrent. What is considered sexual harassment at workplace today is not the same as what it was years ago. Constant conversations and amendments have made it that,” she added.
“Criminalisation often performs an expression of intent. While criminalising marital rape might not have an effect of the ground, it will express society's disapproval of the act itself,” Singhal said.
“That is a big win in itself,” she added.
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Published: 08 Mar 2021,01:04 PM IST