Marital Rape: The Great Indian Normalcy?

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Despite observations, suggestions and international recommendations to widen the definition of marital rape, a rather retrograde and indifferent stance of the legislature still persists.

R ape is the most gruesome violation of a being, a horrid torture to a person’s most intimate sense of self and it can rob one of one’s mental well-being for a lifetime. Then, how can one even classify this physical and mental torture of the gravest forms into legitimate and illegitimate? How can one trade a human’s dignity for a society’s ostensible need to nurture marital sanctity?

It is this validity bestowed upon the act of forcible sexual intercourse by a married man with his wife (marital rape under section 375 IPC), which has been challenged in a recent petition filed by the NGO Rit Foundation and All India Democratic Women’s Association. While the next hearing for the matter is scheduled for September 4, the petition has brought to the surface another long drawn battle to seek amendment of a parochial law exposing women to torture within the confines of their homes. Dr Chitra Awasthi, founder of Rit Foundation, tells Delhi Post, “It is high-time that a wrong as emotionally traumatic as marital rape is recognised. It is important that women do not continue to be discriminated against.”

“An exception to Section 375 of the Indian Penal Code reads: Sexual intercourse of a man with his own wife, the wife not being under fifteen years of age, is not rape.”

A simple reading of this Section makes it clear that a woman over the age of 15, once married, even if forced for sexual intercourse, cannot be considered to be raped. In other words, a marriage has been made equivalent to a legal license to rape a woman. The premise behind this provision remains – the need to uphold marital sanctity. Another argument which is often made in its favour is the equivalence of a matrimonial contract to an irrevocable consent to have sex (The Hale Doctrine of 1736). At this juncture, it is however, the legislature’s response to the issue which is more worrisome.

Ironically, the National Family Health Survey which has been particularly designated to provide data to the Ministry of Health and Family Welfare has in its reports for the year 2015-16 indicated that marital rape is the most prevalent form of sexual violence in households in India (about six percent amongst women in the age group of 15-49), yet the government has outrightly refused to acknowledge its presence.

The Minister of State for Home Affairs, Haribhai Parathibhai Chaudhary in the Rajya Sabha, in a written reply over the issue of marital rape, had stated in 2015 that despite the recommendations of the UN Committee on Elimination of Discrimination against Women, the concept of marital rape, as understood internationally, could not be suitably applied in the Indian context due to various factors e.g. level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society etc.

“While that remains the state of affairs on the legislative front, the Judiciary has, at several times in the past, declined to accept the plea for criminalisation in order to prevent overstepping its judicial limits.”

In its 2017 judgement, in the case of Independent Thought v Union of India, the Supreme Court while interpreting the Section expanded its applicability to consensual/non-consensual sex with a woman under the age of 18. However, it refrained from making any remarks about adult non-consensual sex.

Further, the Gujarat High Court in a recent matter of forcible unnatural sex refused to accept a plea for forced sexual act to be considered rape and rather suggested other legal recourses since no statutory provision existed in this regard. It was in this matter that the High Court also pressed for the need for an abolition of this exception to curb the destructive attitude that promotes rape in marriage.

The Justice Verma Committee in its report post the Nirbhaya Rape incident suggested that 18.8 per cent of the women are raped by their partners on one or more occasion in India and that the legislature needs to urgently look into the gravity of the situation.

Despite all these observations, suggestions and international recommendations from the UN Committee on Elimination of Discrimination against Women (to which India is a signatory) to widen the definition of rape, a rather retrograde and indifferent stance of the legislature still persists.

“Marital rape is today illegal in 50 American states, three Australian states, UK, New Zealand, Canada, Israel, Soviet Union and very recently South Korea, Sierra Leone, Bolivia among others.”

India still fails to keep up with these changing socio-legal paradigms and rather backs this stance with its ‘spurious’ claims of preventing misuse of the section. Not only is it a travesty of a reprehensible form of violence, but also, it is a major disregard, on the part of the government, to the physical and psychological trauma that its citizens are exposed to. Dr. Sunita Thakur, legal advisor, Jagori Women’s Resource Centre, tells Delhi Post, “We have been dealing with marital rapes for a long time. It is not just an emotional trauma but a financial burden on the woman as well. This petition can be a beginning which might strengthen the Dowry Prohibition Act, 1961.”

It is in this light that one looks up to this petition as a ray of hope. Marital Rape is in fact an impingement of a woman’s right to dignity and personal liberty, a violation of her fundamental right under Article 21 of the Constitution (Suchita Srivastava & Anr. v Chandigarh Administration) and needs to be addressed at the earliest. Not only is there critical need to criminalise this act but also there is a requirement for an apt medical, reformative and re-integrative framework to be put in place to provide support at the earliest.

While all these measures seem like a far cry for now, we as a society need to re-think – how many more women should be stultified, violated and bled to death before we stop treating marital rape as a normalcy?