Decoding Marital Rape, A Non-Crime in India

Swikruti Kar

9th September, 2020

No means no, until the woman is married. Apparently, this is what the Indian Penal Code (IPC) asserts. Section 375 of the IPC that deals with rape, leaves out rape within a marriage from its definition.

It is the year 2020, and marital rape is still not a crime in this country. The biggest matter of concern around the issue should be that more than half the population of the nation does not find it problematic in any way. Consent is apparently invalid once one gets married. Entering a wedlock supposedly implies consent to be used as a sex object by their husband. It remains to be by one’s husband, because in India, the law does not recognise that men get raped too.

In India, marital rape is not criminalised and thousands of women suffer in marriages (Sources: Swikruti Kar and Varun Vyas Hebbalalu)

There is, however, an exception to section 375 of the IPC. Marital rape is recognised by the law if the bride is below the age of 15. The existence of this exception is strange, when viewed in accordance with the IPC which states the legal age of consent is 18. The minimum age for girls to get married is the same. Several questions arise, some of which are:

1. How is it justified for a girl between the age group of 15 to 18 to get raped in a marriage, when she is not even an adult?

2. How is it justified for any woman to be stripped of consent and have to obey their husband, when clearly marriage is a bond of love and trust?

3. How a form of rape is still legal in this country?

Marital or not, rape is rape. The fact that in the 21st century a woman is still expected to be subservient to her husband with no regard for her wishes should elicit questions regarding the development quotient of this country. Activist organisations such as All India Progressive Women’s Association (AIPWA), Forum to Engage Men (FEM), etc. throughout have been making several efforts to criminalise marital rape. However, according to several articles by The Times of India, Swaddle, Live Mint, etc, their pleas have been repeatedly dismissed by the court. The court stands firm in its argument for why should Marital rape not be criminalised. These arguments, however, stem from regressive notions such as those of women being child-rearing machines. The justification give for status quo are as follows:

1. It counters Indian culture.

2. Marriage automatically implies consent.

3. If marital rape is criminalised, women will misuse it.

These arguments by the court, however, can be contested. The first argument that it is against the Indian culture, can be extrapolated as it is against the Indian culture to get raped in a marriage. However, given status quo, it is very much in accordance to the so-called Indian Culture, to rape their wife in a wedlock. The second argument states that marriage automatically means consent. The court actually means that women have no feelings whatsoever, and they exist just to satisfy their husband’s sexual needs. The third argument states that women will misuse laws against marital rape. The last argument translates as, ‘to protect rapists, let us blame women’. There is no doubt that a lot of women do misuse the powers that were given to them for their own safety. in no way, however, is it justified to let thousands of women suffer for the wrongdoing of a few.

The fact that lot of people in this country do not recognise rape by one’s husband, is proof that the nation stands way behind the assumed mark of progress and development. This mentality of people in India stems from the basic understanding of marriage. For most of the people in the country, the only purpose that marriage serves is to duplicate their genes and take their family lineage forward. Other than this, the purpose that a marriage serves is for people to have socially approved sexual relationships. Sadly, in the nation, for many people marriage is not a bond of love, trust, and most importantly respect.

The alternative facet to the reason marital rape is not considered a crime in India is the constant tendency to blame the victim. Also, it is surprising how when a girl is raped, the family of the girl and she herself are put to shame and are not considered viable to live with dignity in the society anymore. Whereas, the rapist roams around with absolutely no shame but with his head high.

Many people, to undo rape in India, get the victim married to the rapist and consider the ‘problem’ solved. The state of the IPC with respect to marital rape is especially abhorrent when juxtaposed with the fact that the United Nations (UN) declared marital rape to be a serious offense to be given the same gravitas as non-marital rape.

Other than just criminalising marital rape, what is needed is the education of people about what rape actually is. People should be taught what consent actually means and sexual activities outside the wedlock between two consenting adults should not be a taboo in society. Most important of all, people should be educated about how victim-blaming is never valid.

Regardless of what the victim was wearing, regardless of what time of the day the victim was out, regardless of with whom the victim was, rape is always the fault of the rapist and never the fault of the victim. Along with criminalising the atrocities, a change in the mindset of the masses regarding the mentioned issues is what will put the country on the path of progress.

(Source: The Diplomat, The Swaddle, Live mint, The Wire, The Times of India)

Edited by Varun Vyas Hebbalalu