“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.
Feminists and women’s rights groups have long demanded criminalising marital rape. But, unlike domestic violence, and the various other aspects of rape, marital rape is yet to be a part of mainstream discourse – discussed in hushed tones and soon forgotten.
Indian Men Can ‘Lawfully’ Rape Their Wives: When Will That Change?
1. What Does The Law Say?
To put it simply, India’s rape laws does not apply in cases where the perpetrator is a spouse.
“The Indian Penal Code 1860 differentiates consent given by a married woman and an unmarried woman. As per exception clause in Section 375, sexual intercourse by a man with his own wife, with the wife not being under 15 years of age, is not considered rape. The Supreme Court has read this down to 18 years. This also essentially goes against the Right to Equality enshrined under Article 14,” explained a junior lawyer, who practices in the Supreme Court.
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.
Expand2. Pleas That Sought Criminalisation Of Marital Rape
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.
“They don’t want the law in the bedroom despite the fact that you are not allowed to kill your wife in the bedroom, or slap your wife in the bedroom, nor are you allowed to sexually molest her in the bedroom (under the Domestic Violence Act). Only thing the criminal law has an exception on here is raping a wife in her bedroom.”
Advocate Karuna Nundy, who is representing the petitioners, told Article 14 in October 2020Expand3. How India Sees Marital Rape
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.”
“Before she gets married, a woman is her father’s property. After marriage, she belongs to her husband. In this conception, woman is seen to have no agency, autonomy or even personhood of her own. It is prescribed that she should not have sex because she is not married and after she is married she may say yes to any kind of sex. She has no desire of her own. These patriarchal assumptions are crucial to understanding India’s stand on marital rape.”
Amita PitreElaborating 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.
“To our courts, rape is about honor. If she’s married off, to her abuser or anybody else, her honor is preserved. Within the scope of marriage, a husband is seen to have a right over his wife’s body. Marital rape is not an issue that the State or the judiciary is likely to consider anytime soon.”
Neha SinghalThe 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.
“In any issue related to rights, the basic is simple – No means no. In any relationship, the fundamental aspect is to have respect for each other. In any society, people construct these structures. So, it is also up to people to deconstruct these structures. We actually have to say, ‘hello listen, this is not how it is done’. And that’s exactly what is happening. No matter how distant the fight is,” said Shaonli Chakraborty, Director, Swasti, an NGO that works for women’s health.
Expand4. What Legal Provisions Are Available?
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.
“Section 498A deals with women being subjected to cruelty by her husband or any relative of her husband. Under this section, the man can be imprisoned for up to three years and shall also be liable to pay a fine,” the junior lawyer added.
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.
Expand5. What Will Criminalisation Achieve?
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.
“I deal with women who are survivors of violence on a daily basis. In India, no matter what the religion is, we make our husbands parmeshwars (God). While talking to us, they speak about the gaalis that are given, the physical abuse that is meted out but when it comes to sexual violence, they are ashamed to talk about it. They would never ever say it directly.”
Madhu Bala, JagoriExpand
What Does The Law Say?
To put it simply, India’s rape laws does not apply in cases where the perpetrator is a spouse.
“The Indian Penal Code 1860 differentiates consent given by a married woman and an unmarried woman. As per exception clause in Section 375, sexual intercourse by a man with his own wife, with the wife not being under 15 years of age, is not considered rape. The Supreme Court has read this down to 18 years. This also essentially goes against the Right to Equality enshrined under Article 14,” explained a junior lawyer, who practices in the Supreme Court.
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.
Pleas That Sought Criminalisation Of Marital Rape
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.
“They don’t want the law in the bedroom despite the fact that you are not allowed to kill your wife in the bedroom, or slap your wife in the bedroom, nor are you allowed to sexually molest her in the bedroom (under the Domestic Violence Act). Only thing the criminal law has an exception on here is raping a wife in her bedroom.”Advocate Karuna Nundy, who is representing the petitioners, told Article 14 in October 2020
How India Sees Marital Rape
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.”
“Before she gets married, a woman is her father’s property. After marriage, she belongs to her husband. In this conception, woman is seen to have no agency, autonomy or even personhood of her own. It is prescribed that she should not have sex because she is not married and after she is married she may say yes to any kind of sex. She has no desire of her own. These patriarchal assumptions are crucial to understanding India’s stand on marital rape.”Amita Pitre
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.
“To our courts, rape is about honor. If she’s married off, to her abuser or anybody else, her honor is preserved. Within the scope of marriage, a husband is seen to have a right over his wife’s body. Marital rape is not an issue that the State or the judiciary is likely to consider anytime soon.”Neha Singhal
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.
“In any issue related to rights, the basic is simple – No means no. In any relationship, the fundamental aspect is to have respect for each other. In any society, people construct these structures. So, it is also up to people to deconstruct these structures. We actually have to say, ‘hello listen, this is not how it is done’. And that’s exactly what is happening. No matter how distant the fight is,” said Shaonli Chakraborty, Director, Swasti, an NGO that works for women’s health.
What Legal Provisions Are Available?
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.
“Section 498A deals with women being subjected to cruelty by her husband or any relative of her husband. Under this section, the man can be imprisoned for up to three years and shall also be liable to pay a fine,” the junior lawyer added.
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.
What Will Criminalisation Achieve?
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.
“I deal with women who are survivors of violence on a daily basis. In India, no matter what the religion is, we make our husbands parmeshwars (God). While talking to us, they speak about the gaalis that are given, the physical abuse that is meted out but when it comes to sexual violence, they are ashamed to talk about it. They would never ever say it directly.”Madhu Bala, Jagori
She added that there are many cases where the perpetrator resorts to sexual violence because the wife “wants more.”
“If a woman knows more about sex than the man, if she makes an extra effort to please him or if she expresses her desire to want more, the husband gets triggered. He asks her where has she learnt it from, whether she is having an external affair and it ends in rape. This law would give some, no matter how little, courage to women to speak out.”Madhu Bala
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.
Singhal, on the other hand, said that while it is not necessary to have effects on ground, criminalising will express the intent of the country.
“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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