In 1600s, Sir Mathew Hale, Chief Justice of England delivered a judgement in a rape case in which he stated,“The husband cannot be held guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”

Marital rape has been a debatable issue in our country for almost three decades now. The idea of a man forcefully having an intercourse with his own wife without her consent seems to be too conservative a view for our society to accept.

Marriage is a prominent social institution, and Hindu marriages have attained a far more concrete ground for such an institution as it is not only defined as a ‘social contract’ but also as a religious sacrament in our country. Under the Hindu Law, marriages are believed to be made in heaven, wherein a man and a woman are bound in permanent relationship. They are believed to be bound in such a sacrament for procreation, fulfilment of dharma and sexual pleasure.

The Indian society is following the same trend that England did, almost four centuries ago. In 1991 England underwent a massive change under the pressure of the rising marital discord, and hence marital rape was made a punishable offence. And surprisingly, India is still stuck in the centuries old trends of England, and is resisting a social reform for a long time now.

Marital rape is not a crime against the wife alone, but also engulfs her whole family. Long endurance of a woman to such an execution, in time, makes her mentally traumatised and emotionally numb. It affects her whole family life, where children are no different; they too suffer along with the marital discord between their parents.

In India, our government has been hesitant forever to address this issue as a separate offence, and decide the punishment of the perpetrator under such an offence. There is no provision in our country which exclusively deals with marital rape. Whenever the Indian courts come across such cases, the authorities refer to various other provisions of different existing laws such as ‘The Protection of Women from Domestic Violence Act, 2005’.

Section 3 (d) (ii) of this Act talks about “sexual abuse” which includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman, But this section does not specifically talks about “a wife being raped by her husband.” The Act provides monetary relief to the victim, basically a civil remedy.

Section 375, Exception 2 of the Indian Penal Code, talks about sexual intercourse or sexual acts by a man with his own wife, the wife not being fifteen years of age, is not rape. Therefore, if the age of the wife is below fifteen then forceful sexual conducts with her shall be regarded as rape while there is no mention of the sufferers above fifteen.

Section 377 of the IPC, talks about unnatural offences; whoever voluntarily has a carnal intercourse against the order of nature with any man, woman or animal, shall be punished. This Section in cases of marital rape can only be invoked if a man has forced anal penetration with his wife.

Section 498 A of IPC talks about husband or relatives of husband, subjecting her to cruelty; be it mental or physical. The punishment for such an offence may extend till three years and shall also be liable to fine, but again this section does not specifically deals with marital rape. When a woman knocks the door of a court on the ground that she has been raped by her husband, the court may grant her civil remedies, or moreover divorce on the ground of cruelty, but no specific punishment are mentioned for the perpetrators of such a crime.

Minister for Women and Child Development, Maneka Gandhi in her written reply to the parliament said that, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.”

When the issue of legalizing marital rape is raised in the parliament, responses like, “It will break million homes; it will pollute the institution,” or “the law will be misused” are always ready by the opponents of this idea. It has become year’s old defence for our parliamentarians to cunningly procrastinate the issue of legalizing marital rape in the name of a sacred intuition.

The opponents of the idea of legalizing marital rape are susceptible of its prospective misuse by the wives, but in my opinion this no longer can be used as a defence to refrain from legalizing it as there are hardly any rules or regulations and the process of laws are not subjected to abuse.

One such attempt to legalize marital rape was made in the Verma Committee’s report, a three-member panel appointed to suggest amendments to India’s sexual assault laws, to criminalize ‘Marital Rape’. But the suggestion was put down with the reason that if marital rape is considered as a crime under the provisions of law then it would be contrary to the beliefs of the whole concept of family harmony.

Law is dynamic in nature and thus it changes as the society does. Every issue in our society has to be addressed properly so that every citizen of our country is served justice, and does not feel neglected. But, the constant refusal of this issue has led to the continuous violation of both Article 14 and Article 21 of our Constitution, where the rape of a married woman by her husband is unfairly distinguished by the rape of an unmarried woman, and this is merely because the former comes with a tag of marriage. Let alone punishment it is not even recognized by our Law.

The women population of our country is already in a bad condition, the idea of feminism is not only saving them from male domination and bringing them to an equal footing but is also helping them to reach their goals. This aim would be half reached if sexual violence of women in marriages is treated as the right of a man over her body because she consented to marry him.

According to a study conducted by the International Centre for Women (ICRW) and the United Nations Population Fund’s (UNPFA) is 2014, eight states of India provides some insight into sexual violence within marriages where one third of men in these eight States have admitted to force a sexual act upon their wives at some point in their lives. Therefore, the situation is at the brim and there has been a significant rise in the incidents for the past few years, but such cases often go without any merit as there is no significant law to govern the situation.

India not only has a domestic obligation but also an International obligation to protect women from marital rape. The United Nations Committee on Elimination of Discrimination against Women wants India to criminalise marital rape. UNDP Chief Helen Clark stated that, “The issue is not one of culture, but of consent. If India fails to criminalise marital rape it would flout the Sustainable Development Goals (SDG).”

There are women who are harassed behind the curtains, everyday, in almost every part of our country. This issue needs to be addressed; only way out of this is to change people’s dogma about marital rape. Our community at large thinks that it is the right of the husband to force himself on his wife, while it is expected by the society that it’s her duty to comply with it. This trend of beliefs cannot be changed if the framers of the law, our parliamentarians themselves are hesitant to address the issue, just on the ground that marriage is a sacrament and needs to be protected.

According the ‘UN Women’s 2011 Progress of the World’s Women: In Pursuit of Justice’ report, marital rape is a criminal offence in about 52 countries, including the United States, the United Kingdom, Canada, France, Mauritius, Thailand and the neighbouring country Bhutan. If these countries can manage to criminalise the offence of marital rape despite its difficulties in proving the offence, why can’t India follow suit?

Rupa Bhattacharya

Get Swarajya in your inbox.