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Patriarchy and the Law: Legalised Marital Rape in India

In India, 94% of rapes are reportedly committed by someone the victim knows, and women are 40 times more likely to be assaulted by their husbands than by strangers. While the term rape under Indian law is defined to clearly mean sexual intercourse that takes place against the will of the women, that is, without her consent; the same law creates legal fiction and assumes consent in a sexual relationship, even when there actually is none, as long as the individuals involved are married.

Section 375 of the Indian Penal Code legalises marital rape in India by listing marital rape as an exception to the crime of rape. It used to read as ‘sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.’ A recent case, Independent Thought v. Union of India, modified part of this section to bring it in conformity with the Constitution of India and child marriage and child sex abuse related laws in India - the new reading of this section being: ‘sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.’ In this very same case, where the age bar was increased, the Central Government told the Supreme Court bench that it does not consider marital rape a crime.

The argument of ‘Indian culture’

While answering a question in the Rajya Sabha on March 10, Women and Child Development Minister, Maneka Gandhi, stated, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament etc.”

Whenever someone, politicians or otherwise, gives the ‘Indian culture/context’ argument against criminalising marital rape, they are signalling that their patriarchal notions of family dynamics and male superiority and ownership over the female body are more important than the need to address sexual violence perpetrated within the very structures that they are claiming to hold dearly. There is an urgent need in India to enact progressive legislation in keeping with international standards, especially with regards to gender based violence, to prevent the violation of the right to bodily autonomy under the guise of culture and traditions. We must also keep in mind that India is party to international conventions like the CEDAW that encompass marital rape as a crime, thereby creating certain obligations towards adoption of its provisions. Marriage is supposed to be a relationship of trust and consent between two persons, by using the argument that marital rape might endanger the institution of marriage, one is making marital rape, which is eventually a form of sexual violence, a key component of the institution itself.

Legal remedies against marital rape

Current legal recourse includes some relief under the Protection of Women from Domestic Violence Act, for a civil remedy. Here the judge or the Magistrate can give different orders aimed at ensuring protection and well-being. These include protection orders (ordering the offender to stop violence), residence orders, monetary relief, custody orders and compensation orders, only. You can find a list of protection officers and service providers here, last updated in 2009. In some cases, S. 377 has been used against the spouse as a means of seeking criminal remedy, this method though undermines the fight to bring legal equality to different sexualities in the long run as it continues the perpetuation of the idea of varying sexualities as illegal and wrong. The criminalisation of marital rape also does not mean that it is being separated from other forms of marital violence, it is understanding and accepting that sexual violence is also a kind of violence that can occur within a marriage. It is creating the possibility of formal and legal acknowledgement of such violence, thereby creating State protected rights against such violence.

There is a need for change in laws to dismantle marital rape as an exception to the crime of rape while providing for supportive criminal legislative framework. Amendments in allied matrimonial laws, procedural and evidence laws will also be required to ensure comprehensive legal reality. Our campaign to criminalise marital rape can be found here.

*Vandita Morarka is the Founder and CEO of One Future Collective and is engaged at Red Elephant Foundation as a Legal Researcher. Tweets @vanditamorarka.

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