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Marriage: A License To Rape

The right to choose is always the key to progress for women, as it is for men.~jack holland

Introduction
On 6th October 1860, the Indian Penal Code (IPC) was drafted on the recommendation of first law commission of India under the chairmanship of Thomas Babington Macaulay. It came into force in British India.

Section 375 of IPC exempts Sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape. In India, it is perfectly legal for a man to rape a woman as long as they are married. In most other parts of the ancient world, the earliest laws defined rape as a property crime against the husband or father, rather than the women herself and rape was not possible within a marriage because a man could do whatever he wanted with his property i.e., his wife.

In the 17th century, rape laws view rape as crime against the women herself, it was on the ground of violation of her sexual purity. This was not considered possible in a marriage, because a women’s purity could not be spoiled by her husband. The marital rape exemption originated at common law with Lord Matthew Hale's declaration that ‘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 up herself in this kind unto her husband, which she cannot retract.’[1] Most notably, the law safeguarded both a father's interest in his daughter's virginity and a husband's interest in his wife's fidelity.

Rape of an unmarried woman rendered her unmarriageable by destroying her value to future husbands, while rape of a married woman caused shame to her husband and family. The acquisition of women as property by men was thus governed by rape laws.

Against this background of laws outlawing rape outside of marriage worked a social practice encouraging rape both within and prior to marriage. In the 18th and 19th centuries’, emphasis on women’s chastity increased, and rape began to be perceived as a threat woman faced outside the household, which their fathers and husbands had to protect them from rape.

It was under the influence of these laws and attitudes that the IPC was drafted in 1860, section 375 categorically excluded marital rape from the definition of rape. A century and half later activist movements have led to many progressive changes in India’s anti-rape laws. And yet India continues to uphold a man’s right to rape his wife. In 2012, in response to a judicial committee’s recommendation to criminalise marital rape, a parliamentary standing committee responded that doing this would put the entire family system under great stress.

Since then, politicians and public figures have reiterated that criminalising rape within a marriage will destroy marriages and create absolute anarchy in families. It harks back to the idea that marriage makes a women her husband’s sexual property, and giving him sex whenever he wants is a wife’s duty.[2]

Over 52 countries around the world have outlawed marital rape. Feminist movements around the world are emphasizing the importance of sexual consent, and empowering women to report sexual violence. And yet, the exception for marital rape still stands.

Reasons Behind Marital Rapes:
  • Societal obligation
  • Bound by institution of marriage
  • The Patriarchal set up of our Society.
  • Financially dependent on their husbands and in-laws.
Effect of marital rape
Victims of marital rape suffer the same trauma as victims of stranger rape. In fact, marital rape is frequently quite violent and it has more severe, traumatic effects on the victim than other rape." Stranger rape is a devastating one-time event; marital rape, on the other hand, frequently involves a series of devastating events over the course of years.
  • Anxiety and Fear:
    The most frequently observed symptoms following rape are anxiety and fear.
     
  • Depression:
    Depression is a mood disorder that manifests itself when emotions of sadness and hopelessness persist for an extended period of time and disrupt typical thought patterns. It can have an impact on your behaviour and relationships with others. Feelings of grief, hopelessness and unhappiness are common among survivors. If these feelings persist for an extended period of time, it may be a sign of depression. Victims of rape or sexual assault report more moderate to severe distress than victims of any other violent crime, at over 70%.
     
  • PTSD:
    Anxiety disorder caused by a traumatic incident is known as post-traumatic stress disorder (PTSD). It's totally natural for survivors to suffer unusual levels of stress, worry, anxiety, and nervousness. These feelings are severe in those with PTSD, and they can make you feel like you're always in danger, making it difficult to function in regular life. During the two weeks following a rape, 94 percent of women exhibit symptoms of post-traumatic stress disorder (PTSD).[3]
     
  • Eating Disorders:
    Sexual assault can have a variety of effects, including altering body views and feelings of control.
     
  • Sleep Disorders:
    Symptoms of sleep disorders include difficulty falling or staying asleep, sleeping at odd hours of the day, or sleeping for longer or shorter periods of time than usual.

Case laws
In Nimeshbhai Bharatbhai Desai vs. State of Gujarat, 2018 SCC OnLine Guj 732, the High Court of Gujarat termed Marital Rape as a ‘disgraceful offence’, and elaborately dealt with the issue of Marital Rape stating that:
making wife rape illegal or an offence will remove the destructive attitudes that promote the Marital Rape [4];
However, since the Indian legal system does not regard marital rape as a crime, the Court held that the husband is liable only for outraging her modesty and unnatural sex.

In Thought Independent vs. Union of India[5], (2017) 10 SCC 800, has criminalized sexual intercourse with a minor wife aged between 15 to 18 years, but has refrained from making any declaration regarding the Marital Rape of a woman who is above 18 years of age. Exception 2 to Section 375 of the Indian Penal Code as being violative of articles 14 and 21 and thereby being unconstitutional.

India is a signatory to international instruments, such as the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) the court opined that the marital rape exemption would effectively legitimize child marriages and contravene our international obligations. The exemption was also held to be inconsistent with Section 5(n) POCSO which criminalises penetrative sexual assault on a child by anyone related to the child through marriage; and clause sixthly of Section 375IPC which criminalises sexual activity with a girl below 18 years of age, with or without her consent.

Conclusion
The fight to criminalise marital rape in India, is not just changing the law on paper. It is about attacking the age-old mindset that still views a woman as her husband’s property and not as an individual with her own agency. It’s about fighting against this notion of marital sanctity that is based on the subjugation of women. And it is about challenging this larger rape culture, that denies women our basic rights, respect, and bodily autonomy.

Marriage is now regarded as a partnership in which both husband and wife share equal rights. The purpose of rape law can now be considered as one of protecting a woman's personal safety and freedom of choice than as one of protecting male interests in woman's integrity. Medical evidence has shown that rape has serious and long-term consequences for women. Such heinous sexual actions must be prohibited. The necessity to criminalise marital rape is urgent in order to restore trust and faith in the institution of marriage. Therefore, the exemption of husband from the law of rape could be given up now.

End-Notes:
  1. To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment. (1986). The Harvard Law Review Association, 99(6), 1255–1273. https://doi.org/10.2307/1341253
  2. https://theswaddle.com/videos/video/why-is-marital-rape-legal-in-india/
  3. Victims of Sexual Violence: Statistics. (n.d.). RAINN (Rape, Abuse & Incest National Network). Retrieved May 27, 2021, from https://www.rainn.org/statistics/victims-sexual-violence
  4. Nimeshbhai Bharatbhai Desai vs. State of Gujarat, 2018 SCC OnLine Guj 732
  5. Thought Independent vs. Union of India, (2017) 10 SCC 800

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