(A petition lies before the Delhi High Court on 29 August 2017 challenging the Exception 2 to Section 375 and Section 376B of the IPC, which excludes marital rape from being a criminal offence. In light of the Centre’s submission to the High Court in defence of the exception, The Quint is reposting this article from its archives. Originally published on 29 April 2015.)
All rapes are equal but some rapes are less equal than others.
Marital rape is one such unfortunate occurrence which is yet to be criminalised in India despite its alarming magnitude and expert recommendations.
In February this year, Supreme Court rejected a plea to criminalise marital rape declaring that it was not possible to amend the law for one person. A private member bill tabledin the Rajya Sabha on April 24 attemptsto correct this. Statistics shared by the MP moving this bill are enough toalert anyone to the horrors of marital rape: at least one-fifth of married menhave forced their wives for sex and such cases amount to 9-15% of the totalrapes in the country.
There exists anexception to Section 375 of the Indian Penal Code which states that sexualintercourse by a man with his wife – who is 15 or above – is not rape even ifit is without consent. The exception is obviously horribly biased against women. Provingmarital rape is a difficult thing and since it is not even a criminal offence,women suffering sexual abuse in marriage are doubly disadvantaged. Sexualautonomy is still not a characteristic of our society – particularly for women– but even when it comes to violations in the name of marriage, there is noremedy for the victim.
Marriage used to ‘Discipline’ Wayward Men
In many cases, women are thrown as sexual fodder in front of vagrant men who need to have some ‘order’ brought into their lives. Marriage is still seen as the most effective disciplining tool in rural and semi-urban societies. In fact, if Indian cinema is anything to go by in the assessment of our collective behavioural patterns, many a ‘bade baap kibigdi aulaad’ is married to unsuspecting women who may or may not effect a ‘sudhaar’ in their husbands. Raped women are often forced to marry their violators, saving the latter from the clutches of the law.
Marriageis often referred to as ‘licensed sex’ amongst teens and young adults. Rituals around the consummation of marriage,the legends of ‘suhaag raat’ andfamilial demands for progeny immediately after marriage make sexual intercoursethe fulcrum of a married couple’s relationship with each other. In apatriarchal society like ours, it often translates into sexual dominance of onepartner by the other.
Some Glimpses of Hope
While the new private bill seeks a muchrequired amendment in law, the menace of marital rape cannot be counteredlegally alone. Marriage as an institution is today undergoing an overhaul with agradual progression in the attitudes of people. There is still a long way togo, but in a landmark judgment thisyear, Supreme Court ruled that extra-marital affairs – although an admissible ground for divorce – cannot becategorised as ‘cruelty’. In one fell stroke the apex court modernised marriageby taking focus – largely undue – away from the nuptial bed.
A similarly progressive attitude isneeded to tackle marital rape. Why should marriage be the security cover forpathological rapists? Marital sex needs to be mutually agreeable and not degenerate into slavery or becomea punitive tool. An individual’s body and dignity cannot be sacrificed at thealtar of family honour.
A rape by anyone is rape. Nothing more, nothing less.
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