A Critical Look At The Indian Govt's Resistance To Criminalise Marital Rape

“It will be difficult to determine when consent was withdrawn by the married woman,” the government said recently in its submission to the Delhi High Court arguing against the removal of the Exception from Section 375 of the Indian Penal Code, which exempts a husband from criminal charges in cases of forced sexual intercourse with his wife. The Delhi High Court is currently hearing a batch of petitions challenging the extant exception of marital rape from IPC Section 375.

Section 375 defines rape as non-consensual sexual intercourse with a woman, the term “consent” being the operative term here. In its petition, Solicitor General Tushar Mehta told the Delhi High Court that at the heart of this exception lies “family issues” and hence it cannot be viewed microscopically only as a case of forced sexual intercourse. In view of the the fact that India is one of the remaining 36 countries in the world that hasn’t criminalized marital rape, the arguments given by Mehta seemed like a lazy excuse to shirk away the responsibility of finding a way to address marital rape as a very real crime that women have to confront all over the country.

Also read: Marital Rape: The One That Cannot Be Named

What makes marital rape a complex issue is the notion of men’s historic immunity from this act. A professor from Calgary University, Jennifer Koshan writes about the different factors that make the issue of marital rape contentious. These include, first and foremost, the notion of consent in perpetuity. This notion is premised on the fact that marriages in most societies are often performed with the sole aim of procreation and so consent is considered to be implicitly implied in such situations. The assumption is that once married, the husband and wife can engage in sexual intercourse with each other whenever they want. This assumption is further complicated by the fact that substantive gender equality is not a reality in India and factors like the culturally superior significance attached to marriage, lack of women’s financial independence and an unequal division of labour contribute in no small way to this inequality. This is further compounded by the conservative, yet widespread, notion that a woman becomes her husband’s property upon marriage, thus rendering ‘marital rape’ an oxymoron.

The Centre’s submission to the Delhi High Court also stated that India could not blindly follow the other 150 countries – all of which somehow conveniently clubbed under the umbrella term “Western” even though it includes countries like Iraq, Japan, Kenya, Nepal and others which have explicitly criminalized marital rape – since India faces unique problems due to lack of literacy, financial dependence of women, poverty, the broader mindset of society and diversity. It also stated that the 172nd Law Commission report – a report which was released more than two decades ago – doesn’t recommend criminalization of marital rape.

The Centre’s submission to the Delhi High Court also stated that India could not blindly follow the other 150 countries – all of which somehow conveniently clubbed under the umbrella term “Western” even though it includes countries like Iraq, Japan, Kenya, Nepal and others which have explicitly criminalized marital rape – since India faces unique problems due to lack of literacy, financial dependence of women, poverty, the broader mindset of society and diversity. It also stated that the 172nd Law Commission report – a report which was released more than two decades ago – doesn’t recommend criminalization of marital rape.

One of the only available studies of this nature, conducted in 2000, suggested that between 13 and 16 percent of men are victims of assault by married or cohabiting partners in their lifetime.

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This debate around marital rape is fundamentally a question of consent within the context of an institution like marriage which functions on the basis of implied consent. In recent years, the Indian government at the Centre has shown its troubled relationship with the notion of consent. In arguing that there is a lack of mechanism to verify when consent was withdrawn by the woman, the government is implying that all marriages are consensual. Further, in a country where child marriage is still prevalent, and where until quite recently, women would be urged to marry those who raped them – it is also saying that the Centre cannot be bothered to devise avenues of intervening into such cases as and when they arise.

The Centre’s submission to the Delhi High Court also states that marital rape is included as an offence in the Protection of Women from Domestic Violence Act enacted in 2005, but that is a civil law with no criminal repercussions for the perpetrator of domestic violence. In fact, many police stations in India still consider domestic violence cases as cases where a civil settlement can be reached out of court, in order to maintain the abstract sanctity of the very particular and material reality of families. To this is added the widespread notion that women tend to misuse laws like Section 498A of the Indian Penal Code which deals with cruelty meted out to the wife by the husband and his relatives.

One of the most common issues raised against domestic violence laws historically has been that proving such violence is difficult because of its largely private nature. Such was the covert rebellion against Section 498A that in 2017, the Supreme Court in Rajesh Sharma v. State of Uttar Pradesh stated that before a case is filed under this section, a ‘family welfare’ committee which will be established in every district of the country, will verify the veracity of the woman’s allegations against her husband before actually filing a case. And who would constitute this committee? No one from the District Legal Services Authority that was charged with the creation of these committees but paralegal volunteers, social workers, retired persons, wives of working officers and other citizens deemed to be suitable. So basically anyone that isn’t the woman alleging the crime is suitable to comment on whether the crime was actually committed or not, without any legal constraints on those adjudicating.

Also read: Kerala HC’s Marital Rape Judgment Finally Shifts The Focus Away From The “Sanctity Of Marriage”

These arguments make me wonder what consent means for the government of this country, which is currently encouraging the criminalization of interfaith and inter-caste marriages through its notorious ‘love jihad’ laws. Inter-faith and inter-caste marriages are probably the most remarkable examples of consensual arrangement between two adult individuals, and yet right-wing governed states like Uttar Pradesh, Madhya Pradesh and Gujarat have laws that prohibit “forced” conversion. In most cases, these conversions are not reported by those being converted but by family members who oppose the marriages, thus stripping the woman of any and all agency in such situations. This, however, is not a new phenomenon. Such unions have been targeted in perpetuity, in the clause of the Special Marriage Act asking those wanting to marry to notify their intent a month in advance of their date of marriage, or in the action of the police colluding with parents to press charges of abduction on the partners their daughters have consensually chosen because those partners are from a different caste or religion.

In a question to an UP functionary about how all arrests made under the Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance 2020 were of Muslims, the functionary stated that the law was actually religion-neutral and was only instated in order to prevent cases of fraudulent marriages. It was created to protect the human rights of those being forced. And yet, somehow this logic of “forced” or non-consensuality is not evoked when the Centre is arguing against the petitions made to remove the exception of marital rape to IPC Section 375.

The Inadequacy Of Law

In wanting to preserve the institution of marriage, the fundamental right of liberty in Article 21, which has long been extended beyond the literal guarantee of life and liberty to also include the rights to health, privacy, dignity and safe living conditions, is being trampled upon. Additionally, the right of every citizen to equality before the law enshrined in Article 14 is also being targeted based on whether the woman filing the rape case is married or unmarried.

Is the government afraid of the fact that if the marital rape exemption was to be removed from IPC Section 375, those cases would be heard under IPC Section 376 which details provisions for terming an incident of rape as ‘aggravated’ when committed by public officers or those known closely by the woman? In such cases the woman’s testimony is enough to prosecute the perpetrator without excessive examination by the court, unless the court finds ‘compelling reasons’ to examine her testimony.

Is the government afraid of the fact that if the marital rape exemption was to be removed from IPC Section 375, those cases would be heard under IPC Section 376 which details provisions for terming an incident of rape as ‘aggravated’ when committed by public officers or those known closely by the woman? In such cases the woman’s testimony is enough to prosecute the perpetrator without excessive examination by the court, unless the court finds ‘compelling reasons’ to examine her testimony. Is such agency in the hands of women alleging rape fearful to the patriarchal notions that form the sentiments behind such exceptions? Even during the 2012 Delhi gangrape case, when the women’s movement struggled to fight to make sure the victim was brought to justice, the definition of rape was broadened and a death penalty was added to it, yet what is the status of women in the country today? Without more critical thought been given to the idea of increased criminalization, the intention of which should be to help women inhabit their lives with more ease and security and not to give a clean chit to the government, laws will continue to fall short.

The question of increased criminalization today haunts the Indian judiciary, as it rightly should. As a country, we should question the increasing number of criminal laws that are being passed without adequate consultation or a clear delineation of procedure, in order to appease a certain section of the mass and to keep the government’s vote bank secure. We are slowly inching towards becoming a rigidly police state. And yet, that this same government which places such trust in the hands of the police to catch a criminal cannot create a mechanism to verify whether the rape that had occurred was consensual or not seems, frankly, like a hypocritical argument. The situation is certainly complex, but the government and the judiciary should not be allowed to wash its hands off the situation based solely on the fact that there are no uncomplicated ways of intervention in this situation.


Featured Image Credit: Aasawari Kulkarni/Feminism In India

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