MARITAL RAPE LAWS IN INDIA

AUTHOR: ANUSHKA SINHA, O.P JINDAL GLOBAL UNIVERSITY

Is having sexual intercourse with your spouse without consent really okay? Why don’t we start by asking ourselves this very personal question? I personally would not think the same is fair or just in any way. But the real question is what Indian law thinks about it. Under Section 63 : Definition Of Rape- The BNS defines rape and classifies the different acts that fall under this offense in Section 63. These behavior, which fall under seven distinct categories, range from penetrations using objects or body parts to manipulations that lead to penetrations. Consent is considered, along with factors like age, mental health, and communication skills. But exception 2 of the section stating that, "sexual relations or sexual intercourse by a male partner with his wife could not be considered rape if his wife is not a minor i.e., under the age of eighteen," which essentially means marital rape is not a criminal offence in India. During the formation of The Criminal Law( Amendment) Act 2013, judicial committee recommended various issues and ways to criminalize marital rape which was actually ignored. Later in 2015 the Parliamentary Standing Committee responded with an erroneous argument in support on not criminalizing marital rape that will eventually “destroy marriages”, “create anarchy in families” and the “pollute the auspicious act of marriage”.

Marital Rape, India, Law, Violence Against Women, Criminal law, Women, Wives, Marriage, Hindu Marriage Act, women citizens, patriarchy, Asymmetry, Inequality

Women and very specifically women since forever in our culture are expected and also forced at times to be silent, enduring, compromising, and adjusting to protect the so-called honor of the family and her husband in the society in which our ancestors have overlooked all kinds of wrongs inflicted on the women from rapes to murders. This patriarchal attitude had and continues to make women compliant to the greed of the husband overlooking the women’s wants and needs. The enrichment of Indian society has always been this way but now I feel it is high time that the government starts taking all the necessary steps and precautions to deal with the injustices and violence faced by women in their private space.

Home. What is home? A comfort place or your worst fear? According to ofhsoupkitchen.org a home is not just a place of residence but a feeling of comfort, acceptance, and stability. And finally, who is a husband? Just a partner with whom you have to share your life and take off forever or someone in whom you find comfort, peace, and stability. Now imagine the mental and psychological condition of those women who are subjected to non-censual sex by their partner. A 2011 International Men and Gender Equality Survey (IMAGES) found that over 65% of Indian men believed that wives should always comply with their husbands’ demands and needs for sex irrespective of their will. It questions the very essence of human relationship. In this situation, a man can no longer be trusted as a protector and a woman cannot turn to his perpetrator to seek comfort or gain reassurance. Women end up feeling betrayed and deceived by the very partner with whom she is supposed to share her secret, her children, and her very own sense of life. The security that a marriage is supposed to provide to the wife is missing and makes the women helpless and powerless. The exploitation of her body becomes a part of her daily life against which she cannot stand up because the society tries to silence her and make her believe that this type of violence is completely normal. Home remains no longer safe for a woman. In such cases home just becomes the prison where the women are trapped and assaulted without their will and then are nothing but just the desire to satisfy their husband.

I am going to refer to a story here “The Intrusion” which talks about the recently married couple who went on their honeymoon to a fishing village- a secluded guesthouse. After the tiresome day, the woman just wanted to have a nice talk with his husband, get to know him better, enjoy the surroundings, go to the beach with her husband, and relax. But her husband had different plans where he only wanted to have sexual interaction with the women. Upon stopping by the women and explaining to him that all she wants right now is to know him better and develop an emotional dependency on him, he retrieves back by saying all the matters now is that they both are married and that is enough. Where the woman wants an emotional connection with her husband, the husband only thinks of marriage as an automatic transition into intimacy and becomes frustrated when her wife resists his touch. Then in the middle of the night when the women were asleep, he forced himself upon her and eventually succeeded while the women were left to feel used, humiliated, violated, raped and powerless, realizing that she has lost control over her own body and life. This story is a clear and true indicator of the difference and discrepancy in the expectation of the partners in the marriage. While the women want to have comfort and a special bond with their husbands, the age-old patriarchal notion of women’s duty to serve the needs and desires of their husbands has put a lot of burden on them. Husbands do not really think about the psychological, emotional, and physical impact their wife has to go through due to such an act.

I personally believe the root cause of marital rape is the gender inequality in the society. There is no doubt such activities have been taking place since a very old time. All of this continues even in today 's world because of all the age-old practices of subjugation of women as inferior to the husband and their only duty being compliance with their partners. But as the ideologies and perspectives about marriage, the individual, society and various other daily aspects of life are changing, I believe it is the duty of the government to ascertain the new changes in the society through changes in the law. But the act of not touching the marital law by saying it will “destroy marriages” and “ pollute it” actually finds analogy in the manusmriti ideal of women providing sex to their husband as the duty of an “ideal wife.” It overlooks the fact that marital rape is the part of erroneous form of sexual violence, ignores the integrity of women’s body and violates the trust and purity of the auspicious relationship like marriage. The ideological change in the conservative society like our need to bring through the stringent laws against it. The government needs to come forward and out of the shell of the old practices, put their foot down and work toward bringing the change in the marital laws in the favour of the women.

According to an article by Shalu Nigam the deep and primary cause behind the denial of the marital rape laws for the married women is the level of poverty, illiteracy , religious beliefs, and social customs that makes the Indian society unsuitable and inadequate to adopt any kind of marital rape laws that are applicable elsewhere. This presumes that the majority of men and women are illiterate in india and thus incapable to understand the complex phenomena and intercities od the marital rape and understand their own psychological and emotional stance on such situation. Which I very personally think does not make sense. I believe that women do not need to have degree to understand the psychological and physical betrayal that she had it face during her marriage. Can the levels of education, prevalence of poverty, existence of rigid social customs or religious beliefs are the reasons enough to justify nonconsensual sex as consent to allow marital rape? As per the statistic report and survey done by the national library of medicine, Of the eleven studies, eight studies assessed the association between spousal violence (physical, sexual, and psychological) and clinical depression, while two studied antenatal and postnatal depression as outcomes. Only four studies explored the association between spousal violence and Post Traumatic Stress Disorder (PTSD). Two studies assessed for suicidality including ideation and attempts. Apart of the mainstream psychological impacts, the married women who experienced repeated sexual violence in their marriage also end up suffering more like from intrusive thoughts, suicidal act attitude and act, nightmares, and even flashbacks of the assault. These all ruffles up their mind and make them hypervigilant, constant fear and anxiety or sometimes even becomes emotionally numb as their way of coping from the trauma of their lifetime. All this ends up disturbing their daily life and also makes it difficult to experience any kind of joy. The erroneous trauma of getting raped by the partner with whom you have to spend rest of you has profound effect on their self-esteem and self-worth. This report shows the adverse impact of nonconsensual and forced sex that married women have to encounter during their marriage and for understanding and protecting these women from the exploitation that they are subjected to by their husband, literacy or any degree of education seems irrelevant. Can married illiterate women be denied their right to their body and life? No right? Everyone irrespective of their education, and previous social customs they all should be equally treated in the democratic country of India.

During 1600s Mathew Hale, Chief Justice in England, in his famous thesis entitled Historia placitorium Coronea 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.” Why is consent in marriage for sexual encounters not important? Can women not even have the right to say yes or no? According to the upper quote, it very directly implies that marriage is the consent for lifelong consent and no further consent is required. It is blindly assumed that a woman gives up all rights to her body and to herself, once she goes through the ceremony of marriage. Which is one hundred percent false. The wives are more than often regarded as inferior and in need of being taken care of by someone more capable. In India due to the sacramental and auspicious nature of the marriage as a lifelong bond overlooks and eliminates the idea of consent before having sex. The wife more than not treated as sex slave and no escape to this slavery is provided to the women upon whom the forced sexual act has been inflicted.

In India there is a big need for change in the marital law and recognition of non-consensual sex within the marriage. Laws and the lawmaker in India need to understand that forced sex is rape whether it is done by a stranger or your partner and whether in a private space or nor in a public environment. The very concept and ideology of “blanket consent in marriage” is barbaric and tyrannical. The marriage is no license for rape. In a democratic egalitarian society, the state or the government has the role to protect and promote the rights of every single citizen regardless of their sex and social status. We have seen that various national and constitutional laws in our country bind the state with the duty to promote the rights of women as they were subjected to various violence in the past. But the exemption to address the need for laws against the martial rape laws is unconstitutional. The state should drop their duty to protect the sanctity and institution of marriage that they have been doing for decades and now turn to women and help them come out their misery of their vulture desired women. The non-interventionist approach followed by the state in the marital rape related issues perpetuates biases and discrimination against married women. The society is guided by the patriarchal ideology and is blatantly violating the basic constitutional norms so the government needs to step forward and take appropriate actions. The lawmakers also failed to understand that the laws against marital rape will not only help convict the the violated and help provide the justice to the wives but also act as a deterrent and serve as an educational tool to determine moral and social wrong.

We need to make home a safe place for not only the wives but also their children as they are the core of the family and get very emotionally and mentally impacted by any violence seen and felt by them in their own house. We need to start by taking down the husband from the pedestal given to them in the marriage and make the marriage all about equal partnership and the same respect and dignity provided to both the husband and the wife. And it is essential to embrace and inculcate the concept of consent in our marital relationship. The patricidal society in India needs to give rights to the wives over their bodies because that is the social change that is going to positively impact the society. Challenging the deeply ingrained stereotypes, widespread men dominated mentality and questioning and arguing the biased values and respect given it the different partners in the society may provide the solutions to the issue of discrimination and sexual violence within marriage. All this cannot be done overnight but a very big stake has to be altered by the lawmakers in the country to provide and equip wives with the same justice and dignity that they deserve. And all this will start with an impactful reform in the justice system which needs to address the structural inequalities that are fundamental to our laws and constitution. During the intersections of religious and customary laws and laws for the protection of a certain group, the second should prevail. Apart from the appropriate changes in the laws there is also the need for the open discussion to define such sexual offences inflicted on the wife, for the appropriate punishment and compensation, and further welfare of those women who have suffered from such sexual violence in their houses. While amendments to the legal system of India are very important and significantly symbolic for the recognition of the women’s rights to bodily integrity, equality and also betterment of their psychological and mental health, it is necessary that these changes are also equipped and accompanied with adequate social and political help that would useful for the economic and social independence from their husband that would be a plus point on their life and and reason not to be looked down on the society. The very idea of making the home a safe space for both the partners and their child should the primary concern and drive for the government and the concept should be broadly interpreted and inculcated when dealing with the matters of sexual violence or rape with a relationship as intimate as marriage.