Marital Rape: The One That Cannot Be Named

Trigger Warning: Rape and Sexual Abuse

The first thing I do in the morning after I wake up is check my Twitter and see the trends. I was surprised to see #MarriageStrike trending on Twitter. At first glance, I found it interesting and wondered who these people were, going on a marriage strike. To my horror, I started reading the tweets under the hashtag and understood the logic of the trend. People were calling for a marriage strike as Delhi High Court is hearing pleas to criminalise marital rape. The batch of petitions challenges the second exception to section 375 which states that the sexual intercourse of a man with his wife will not be considered as rape. The petitioners are arguing that the exception is in violation to Article 14 (Equality before law and equal protection from law) and Article 21 (Right to life) of the Indian Constitution. 

However, this is not the first time that the discussion on criminalizing marital rape has been initiated. In 2017,  Independent Thought, a child rights organization, filed a writ petition in the Supreme court challenging the constitutionality of exception 2 to section 375 of the Indian Penal Code with respect to sexual intercourse between a man and his wife aged between 15 and 18 years. The court observed that sexual intercourse with a girl below 18 years is rape regardless of marriage. The court refrained from making any remarks with regard to marital rape of women who is above 18 years of age as it was not the issue brought before them.

The tweets in support of the ‘strike’ argued about how criminalization of marital rape will create the possibility of fake cases. By giving examples of false rape and dowry harassment cases, they reasoned that it would be used against innocent men. However, so many true cases go unreported. By comparing the data on sexual crimes as reported in National Family Health Survey and National Crime Records Bureau, the Mint estimated that 99.1% of the crimes are not reported. Aashish Gupta from Research Institute for Compassionate Economics (RICE) also compared the data and found that only 2.3% of the rapes experienced by women were by men other than their husbands. The research showed that only 5.8% of rapes by men other than husbands and 0.6% of rapes by husbands has been reported. As there is no law for marital rape, they are probably reported under ‘cruelty’. The possibility of fake cases exists in all kinds of criminal laws- it does not mean that we don’t make laws against those crimes. 

Also read: How Sexual Violence Gets Interpreted Under The Hetero-Masculinist Lens Of The State

Another contention is that the existing framework of law is enough and there is no need for a new law. In a debate on criminalization of marital rape organized by The Quint, Madhu Kishwar, an Indian academician and commentator, asserted that section 498 A and Protection of Women from Domestic Violence Act are sufficient to deal with marital rape. However, section 498 A defines cruelty as harassment to meet a demand or willful conduct driving woman to suicide or causing grave injury (mental or physical). Though Domestic Violence Act includes sexual abuse as one of the definitions of Domestic violence, it is a civil law. Therefore, it is essential to remove the second exception to section 375 and criminalize marital rape. Emphasis on using the current legal framework and not define marital rape displays the hesitancy to use the term marital rape. 

Politicians have been conveniently citing Indian culture to justify inaction towards criminalization of marital rape. In response to the question regarding criminalization of marital rape, the then Minister of Women and Child Development Maneka Gandhi responded that the concept cannot be applied in the Indian context due to religious, cultural factors. The response has an eerie similarity to the statement given by Haribhai Chaudhary, former Minister of State for Home affairs. It is a complete U-turn from her initial stance when she observed that marital rape is about power and subjugation. In the ongoing debate, Rahul Gandhi tweeted in support of criminalization of marital rape while emphasizing on the importance on consent. However, it was the Congress led government that had rejected Justice Verma committee’s recommendation of making marital rape a criminal offence. The parties in power have been hesitant to take the bold move.

The trending hashtag highlights deeply entrenched patriarchy in our society. Men prefer boycotting the institution of marriage instead of simply asking consent of their partners. It makes me wonder how 14th century people have made it to the 21st century. In Bodhisattwa Gautam v Subhra Chakraboty, the Supreme Court had observed that, ‘Rape is not an offence against the person of a woman, it is a crime against the entire society’. India is one of the thirty-six countries where marital rape does not amount to criminal offence. India is also one of the signatories to the UN declaration on the Elimination of Violence against Women which clearly defines marital rape as violence against women.

Also read: Rape Jokes In Popular Culture: The Violation Of Consent Is Not Funny In Any Context

Why are we allowing marriage to be a license to rape? If criminalization of marital rape is a threat to marriage, we need to reevaluate the institution which does not take dignity, basic human values, and consent into consideration. A rapist remains a rapist irrespective of the relationship they share with the survivor. As the Justice Verma Committee and Convention on the Elimination of Discrimination against Women pointed out, the reforms in the law need to be supplemented with gender-sensitive training for law enforcement officers, judges, lawyers to facilitate attitudinal changes. The first step towards that direction is by calling it what it is- marital rape. 

Prarthana Puthran is a student at Sciences Po. She can be found on Facebook, Instagram, Twitter and LinkedIn.