The Karnataka high court recently stated that a man can be punished for raping his wife. The order stated that “rape is rape, be it performed by a man the ‘husband’ on the woman ‘wife”. This order came while the Karnataka high court was hearing to a petition filed by a man for dropping of rape charges levelled up on him by his wife.
This judgement of the Karnataka high court on the marital rape is indeed applaudable. It comes at a time when the criminalisation of the marital rape is up for judgement at the Delhi high court. Exception 2 to Section 375 of the Indian Penal Code legalises unwilling sexual intercourse between a married man and a woman aged over 15 years, hence legitimising marital rape.
The exception in the law exists because India is still following the laws made by the British in the 1860s. Although Britain and its former colonies like Australia now have laws criminalising marital rape, India seems to be still stuck in the age-old conservative norms.
India is one of the 36 countries including Pakistan, Afghanistan, Bangladesh, Egypt, Algeria and Botswana that legalises marital rape. It is high time to change not just people’s attitude about sexual offences in a marriage but also repeal the decades-old law on marital rape. This judgement is a positive indication of how there’s hope for a change in the inhumane approach towards marital rape that continues to exist in a democratic India.
There are numerous cases of sexual violence that are recorded in India. Over 30% of women in India aged between 18 to 49 reported having experienced spousal violence, as per a latest Indian government’s National Health Family Survey. According to the survey of 724,115 women, an average Indian woman is 17 times more likely to face sexual violence from her husband compared to anyone else.
A lot of women endure sexual violence in a marriage. It is already difficult for a woman to be vocal about sexual violence in the marriage. Some of the common reasons are the fear of a downfall in the family’s reputation when reported, an emotional dependency on the abusive partner, social stigma around divorce, etc. Considering how societal sanctions further repress a victim of marital rape, the least that one could expect is for the laws of the nation to provide proper redressal of a victim of sexual abuse in marriage.
This order by the single-judge bench of Justice M Nagaprasanna of the Karnataka High Court doesn’t only address the impact that something as inhumane as rape can have on a woman but it also presses on the need to criminalise marital rape in India.
Although Section 375 of the IPC legalises marital rape, the court made its judgement based on the Article 14 of the Indian constitution that treats all human beings as equals, hence not supporting such provision of the law that differentiates between the rights of the man and the woman.
There has been a significant number of cases of sexual violence by a spouse. Unlike the fair judgement given by the Karnataka high court, many courts in India have previously passed their verdict in support of the accused, stating the IPC Section 375.
The judgement also provides a detailed reasoning for the other Indian state courts to remove the legalisation of the marital rape. The state courts in India can follow the same suit while making a decision on cases related to sexual violence in a marriage. It will not only help the lawyers and activists fighting for the repeal of the law but also put some sense into the so-called “men’s rights activists” who have been protesting against the removal of this aged-old law.
We live in a democratic country where a woman’s life’s major decisions are controlled by the family or relatives before marriage and after marriage it’s the husband who seems to believe that a woman is his property and he has all rights over her.
In response to a petition to criminalise marital rape filed at the Delhi high court by nonprofit called the RIT Foundation and the All India Democratic Women’s Association, a men’s rights group argued that making nonconsensual sex a criminal offense would be tantamount to turning husbands into “rapists” and will lead to the breakdown of the institution of the family.
The absurdity of the argument is such that it imposes a male authority over a female’s body, in the name of maintaining family. The court’s full order has even addressed this issue and stated that “age-old regressive” thought that “husbands are the rulers of their wives, their body, mind and soul” should be effaced.
The Indian government had previously supported the continual of the laws legalising sexual violence in a marriage. In 2017, the BJP government argued against making marital rape a crime because it could “destabilise the institution of marriage” and “become an easy tool for harassing husbands.”
The union government has proposed a consultation with state governments and other stakeholders, and are still awaiting their views on the matter, hence putting a halt to the Delhi high court’s verdict on criminalisation of the marital rape.
As the fight for the introduction of the laws criminalising marital rape continues, the Karnataka’s court order gives hope that the voices of the woman standing up for their rights will not be left unheard. More importantly, it will provide a great support for the women who have suffered or are suffering the traumatising sexual violence in a marriage.
The court’s order also stated how important consent is in a marriage, which otherwise is neglected by many and the laws of the country. The order said, “A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape. Such sexual assault by a husband on his wife will have grave consequences on the mental sheet of the wife, it has both psychological and physiological impact on her. Such acts of husbands scar the soul of the wives.”
It’s not only a progressive statement but it also addresses how nonconsensual sex can ruin both the physical and mental health of a person.
There are numerous such cases of marital rapes in India and this absurdity will continue to happen if marital rape is not legally criminalised in India. It’s inhumane to believe that just because a man and woman are married to each other, a man can do anything with a woman or there’s no consent required since they are married.
Featured Image Credit: Aasawari Kulkarni/Feminism In India