Recently, the topic of marital rapes and their criminalization has been discussed inside and outside of the courtroom. The Delhi High Court has recently initiated a discussion on marital rape in our country. The HC has asked the central government for views regarding the criminalization of marital rapes. We know that rapes in India are criminalised under the Indian Penal Code. However, marital rapes are not considered “rapes” in our legal system. There are many reasons given in defence for not criminalising marital rape. But rape is rape, and why is marital rape different?
When a woman is raped, she becomes a victim. It was her dignity and her honour that were attacked. However, in history, in many cultures, we read differently. When a woman was raped, it was considered a crime or theft of a man’s (father’s or husband’s) property. Even though it was a crime, women were not considered victims. The victims were men. And the crime was on their property. The rapist was punished because he committed a crime on a man’s property. Women as the property of men were the general views and understanding of the system back then. And, with that view, a husband could never rape his wife as she is his property. This view has remained stable throughout that world.
In every culture, there is a concept of marriage, and it is this marriage that gives conjugal rights like having sexual intimacy with one’s partner. And since societies were patriarchal, women’s roles became subordinate to men’s. The definition of a perfect wife was a woman who would submit herself to her husband. And thus, it became her duty to satisfy her husband, even if it meant sexually. Conjugal rights became solely men’s rights. Her “NO” was not a thing. However, in some African cultures, women had a partial choice of whether to say no to their spouse for sex. This was conditional, which means they could say “no” in some specific circumstances such as advanced pregnancy, death of close relatives, menstruation, etc.
In India, the definition of rape is codified in section 375 of the IPC (Indian Penal Code), the official criminal code of India. “Sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud, or when she is intoxicated or duped, or is of unsound mental health, and in any case, if she is under 15 years of age, is a rape,” it states. However, it allows an exemption, according to which sexual intercourse by a man with his wife who is over 15 is not sexual assault. The IPC was drafted in the 1860s when the British were ruling over India. All the Indian laws enacted by the British at that time were influenced by English laws and their norms. English laws did not recognise men and women as equals. They did not allow married women to own property and thus merged the identities of husband and wife under the “Doctrine of Coverture.”
This doctrine says that upon marriage, a woman’s legal rights and obligations are subsumed by those of her husband. As a result, the woman was given a subordinate legal status. The patriarchal Victorian society did not allow equality for women. However, in the modern era, where equality is the right, Indian laws started changing. Many amendments, laws, and acts were passed, including “The Protection of Women from Domestic Violence Act” and “Sexual Harassment of Women at the Workplace (Prevention, Prohibition, and Redressal) Act,” among others. But even with that, we are still not fulfilling the aim of article 14 of our Constitution. Article 14 guarantees equality to all citizens, but the criminal laws discriminate against female victims who have been raped by their husbands.
Marriage and sexuality started to be challenged in western society in the 1960s and 70s by second-wave feminism. This led to self-determination as to the right of women to all matters related to their bodies.
The Current Scenario
According to a study cited by Gary F. Kelly in 2011, 9% of female rape victims were raped by their spouses. The prevalence of marital rape is there, but it’s not easy to find the actual data regarding it. As of 2019, marital rape has been criminalised in about 150 countries as of 2019. In some countries, it is explicitly criminalized, and in some, there is no distinction between marital rape and rape by anyone else, which means common law for everyone. India is one of the countries where marital rape is still not criminalized.
To bring equality, justice, and empowerment to women in the real sense, we must create an equal world for them. In a rape by someone else, a woman can never interact with her perpetrator. However, in marital rape, she has to live with her perpetrator, her husband. There are psychological impacts on these women, and the trauma is unthinkable.
With that being said, there are some concerns regarding false cases. For this, it is necessary to study the laws of other countries and take scholars on board. Yes, there will be some issues, but we cannot be blind and turn away from all the injustice happening to women in the form of marital rape. We need to criminalise marital rape and, along with the issues concerning it must be answered. And with that, we can bring equality and justice in a real sense.