Sleeping with the Enemy: Addressing Marital Rape in India

Sleeping with the Enemy: Addressing Martial Rape in India

By Diya Uday, 
Legal Researcher and Policy Analyst,
Indira Gandhi Institute of Development Research, Mumbai

In 2015 a woman appeared on television. She was clad in heavy layers of fabric and thick magnifying spectacles. Clearly the aim was to hide her identity. She told a tale of horror. She spoke of her nightmarish marriage, in which she had been subjected to sexual cruelty and rape at the hands of her husband. In addition to never asking for her consent, he would beat her up and insert artificial objects in her. The night she decided to leave, her husband hit her on the head with a box and a torchlight, 18 times. He then inserted the torchlight in her. She bled for two months.

Rape is a crime. We all know that. But few know that today criminal law, differentiates between the victims of rape based on their relationship with the rapist.

Section 375 of the Indian Penal Code, defines rape. It now includes the act of insertion of an object in any orifice of a woman, without her free consent. However, one exception exists where, any of the atrocious things listed in Section 375 can be done without consequence under this law.It is that “…sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape (emphasis supplied).” Currently, marital rape is not an offence in India, if the victim-wife is 15 years of age or above. In bringing in an exception, the world at large has been informed that in India, the law does not treat rape as rape, if you are married to the victim.

The recommendation to criminalise marital rape in India has come from both national and international quarters. In 2013, the Justice Verma Committee, which was constituted as a reaction to the Nirbhaya case, concluded that forceful sexual acts committed without the consent of the partner should be an offence regardless of the age of the wife. From international quarters, the United Nations Committee on Elimination of Discrimination Against Women in 2014, recommended to India that marital rape be criminalised.

However, an official statement by the Ministry of Home Affairs, the Government of India read that that,”..the concept of marital rape, as understood internationally, cannot 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 to treat the marriage as a sacrament, etc. (emphasis supplied)”; and therefore, there was no proposal to amendment the present law on rape as it stood.

To add insult to injury, in a more recent event, in the Delhi High Court, the centre took the stand, that criminalising marital rape could, “de-stabilize the institution of marriage, apart from being an easy tool for harassing husbands (emphasis supplied).” They further went on to state that “…what may appear to be marital rape, may not appear so to others (emphasis supplied)”.

To my mind, there are three take aways from these statements. First, once criminalised, the concept of marital rape has to be clearly defined. That is to say, what constitutes marital rape and what does not, needs to be clearly sketched out. This will serve two purposes. It will ensure speedy justice to the victims of such a crime, by ensuring that there is no wastage of time in proving whether the act was indeed rape. And it will also help protect against misuse, by ensuring that the ambit of what constitutes marital rape is clearly defined.

Second, and the more worrisome takeaway, is the fact that everyone seem to be more concerned about preserving marriages, regardless of what goes on behind closed doors. Sort of like an ostrich burying its head in the sand. And clearly this sentiment goes all the way to the top.

Third, even the government appears to believe that there are qualifiers to who can and cannot seek justice for rape. Citing reasons such as poverty, education and religious values and beliefs, as justification for not having such a law, is hypocritical. These qualifiers do not apply and are not considerations in cases of rape outside a marriage. Then why should they be factors where the victim is in a marriage with the rapist? And surely no value, religion or custom advocates such cruelty?

All laws are born out of necessity. The law against rape, as it stands in India, was strengthened after public outrage from the Nirbhaya case. Similarly, the claim that marital rape is prevalent in India, is not unfounded. Current data collected by the United Nations Global Database on Violence against Women, records that 37% women in India face lifetime physical and/or sexual intimate partner violence. Clearly, there is a need to provide some relief to the victims of this. India presently stands with a handful of countries where spousal rape is not a criminal offence. These include countries such as Pakistan, Bangladesh, Afghanistan and Yemen.

With continued pressure from both domestic and international groups, there is no doubt that eventually, we will progress enough as a society to treat martial rape as rape and criminalise it. But while we wait for this to happen, maybe its time we took a closer look at how our attitude as a society influences the law.

Decades ago, widow remarriage was unthinkable until someone spoke out in favour of it. It is legally permitted now. Child marriage was considered normal in society, until someone spoke out against it. It is prohibited now. It is time we looked at rape and sexual violence in marriages for what it is, and speak out against it. 

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