Marital Rape: An Offence

Safecity- Elsa D'Silva
Posted April 9, 2017 from India

“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 2/3rdof 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. This blog was first published on Safecity.

Krishna Thakkaris a blogger at Safecity and a second year BLS student from Pravin Gandhi College of Law andstands bywriting to express her thoughts. She is a creative writer as well andbelieves that we, all as humans, perceive differently.

Comments 6

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Jill Langhus
Apr 10, 2017
Apr 10, 2017

Hi Safecity. Thanks for sharing Krishn'a important story and stats about marital rape. Those stats are staggering, and not in a good way. What is the best, most efficient way for laws to start to change in India? And, I also wonder about the U.S. and Britain. Are the men there really so evolved that this isn't happening or is it just not reported? Plus, I wonder how many incidents of this are really occurring in India, i.e., the ones that aren't reported or husbands that aren't admitting that they're doing it. So wrong, and so sad:(

Safecity- Elsa D'Silva
Apr 13, 2017
Apr 13, 2017

Dear Jill, Thank you for taking the time to read this piece. Marital rape is a terrible reality for millions of women worldwide, several of whom have no legal recourse to address this heinous act of sexual violence. A starting point would be recognition of marital rape as an issue of violence by the government, followed by dialogue with civic society and legal experts to formulate a law that can effectively tackle marital rape. Alongside there is an urgent need for awareness creation and sensitization at every level on a war footing. Unfortunately for all countries our knowledge is restricted to cases that are reported, on ground activists in various countries place real numbers as much higher than reported statistics.

Regards,

Vandita Morarka,

Policy and Legal Officer, Safecity

Jill Langhus
Apr 14, 2017
Apr 14, 2017

That makes sense as a starting point, and also for follow through. Yes, about awareness of rape being used as a weapon of war. I only hear of it in passing. So horrible:( I wonder how we can encourage women to report their cases? Kind of like Safecity already does in India but more widely spread? That sounds really good to me:) I'm sure it's easier said that done, though.

Lisa Anderson
Apr 11, 2017
Apr 11, 2017

Dear Safecity,

Thank you so much for bringing awareness to this important issue. I appreciate how you incorporated facts, statistics and historical background into your writing while also underscoring the emotional trauma of marital rape.

This line in particular stuck with me: "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."

All my best,

Lisa

Safecity- Elsa D'Silva
Apr 13, 2017
Apr 13, 2017

Dear Lisa,

Thank  you for taking the time to read it and your kind words of appreciation. Will convey it to the writer.

Regards,

Renita Siqueira

Communications Officer, Safecity

nupur shah
Apr 14, 2017
Apr 14, 2017

Nicely put into words by Krishna. 

This is a very important issue to be looked into by all of us. We as people can surely bring out the change. Happy to have worked with you'll.