The right to choose is always the key to progress for women, as it is for men.
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.’ 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.
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:
Effect of marital rape
- Societal obligation
- Bound by institution of marriage
- The Patriarchal set up of our Society.
- Financially dependent on their husbands and in-laws.
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 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
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
- 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.
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 ;
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
, (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
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.
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.
- To Have and to Hold: The Marital Rape Exemption and the Fourteenth
Amendment. (1986). The Harvard Law Review Association, 99(6), 1255–1273.
- 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
- Nimeshbhai Bharatbhai Desai vs. State of Gujarat, 2018 SCC OnLine Guj
- Thought Independent vs. Union of India, (2017) 10 SCC 800