Krishna Thakkar is a second year BLS student from Pravin Gandhi College of Law and stands by writing to express her thoughts. She is a creative writer as well and believes that we, all as humans, perceive differently.
MARITAL RAPE: AN OFFENCE?
“I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, I would hate him as a rapist.”
-Philippa Gregory, the Red Queen
Marital rape, also called spousal rape, is the rape of one spouse by the other. It is a form of domestic violence and sexual abuse. Majorly it so happens that women, who are often considered as an ‘object’ of vulnerability and fragility, are the victims of this heinous act which still stands decriminalized and legal in India. The reluctance to criminalize and prosecute marital rape has been attributed to traditional views of marriage, ideas about male and female sexuality, interpretations of religious doctrines and the age-old concept of subordination of a wife to her husband.
The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “The husband cannot be 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.” Not surprisingly, thus, married women were never the subject of rape laws. Laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of the marital relation.
India, being one of the fastest developing countries in the world stills stands far behind when it comes to marital rape laws. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is NOT an offence in India.
In response to the question of whether the Government plans to criminalize marital rape, Minister for Women and Child Affairs, Maneka Gandhi, wrote to the Rajya Sabha stating that “laws on marital rape 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.”
Hindu scriptures give some kind of superiority to women in a marital relation and her will and desire is paramount. Unfortunately the Hindus of this nation are governed by the Indian Penal Code which has not drawn any reference from Hindu scriptures. In the view of Supreme Court lawyer, Vrinda Grover, a criminal complaint of rape against the husband cannot be lodged for that is written in the law. A look at the options a woman has to protect herself in a marriage, tells us that the legislations have been either non-existent or obscure and everything has just depended on the interpretation by courts.
Marital rape, which occurs in an abusive relation, leaves a woman physically wounded, mentally shattered and emotionally unstable. Statistics stand testimony to the fact that 2/3rd of married women between the ages of 15-49 years in India have been beaten and raped thereafter. Also 1 in every 5 Indian men admits forcing their wives into sex. Such women are at a higher risk of depression, are more likely to acquire HIV and are also likely to have an abortion.
Countries like USA, Britain, and Bhutan have criminalized marital rape but there are 127 countries that do not criminalize this heinous act which brings forward a disappointing figure of 603 million women living in countries where marital rape is not considered a crime.
The Indian Constitution boasts of equality but when it comes to our lawmakers, crimes against women always take a backseat and their remedies are hidden behind the black mask of culture, society, norms, values and the perception of society towards women as mere homemakers and subordinate in the marriage. Are these ‘norms’ and ‘values’ only to be followed by women? Are the men not subject to societal ‘values’ and ‘norms’? Does marriage give men the right to have non-consensual sex”? Don’t women have the right to their own bodies? Does Indian culture accept marital rape? Does the Government lack the courage and conviction to pass a law against it?
In the globalised world where equal rights have emerged for both, the men and women, a step should be taken to bring this act into light, made punishable so that the women in this country can stand tall, fearless and at an equal footing with men especially in their marriage.
Opinions expressed are of the bloggers.