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Marital Rape Legislation in India: A Throwback to Colonial Times

The opinions expressed in this article are the writer’s own and do not reflect the views of Her Campus.
This article is written by a student writer from the Her Campus at Delhi South chapter.

Given the leaps India has made in its socio-economic development in the past few decades, its treatment of its women this far into the 21st century is pitiful. While Section 375 of the Indian Penal Code includes all forms of sexual assault involving non-consensual intercourse with a woman, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over eighteen years of age, essentially legalizing marital rape in the country. India continues to be one of the thirty-six countries in the world that does not criminalize marital rape, along with Afghanistan, Bangladesh, China, and several other African and Asian countries. 

This fact becomes all the more disturbing when the numbers come into play, because statistically, 70% of women in India are victims of domestic violence, so much so that one in every three married women between the ages of 15 and 49 has suffered at the hands of the men in their lives. 

Several petitions and movements have been met with misogynistic responses. For example, a report in 2013 suggested amendments to Criminal Law recommended that the exception be overturned and the Law Commission refused to act and rejected the recommendation by stating that such a move “may amount to excessive interference with the marital relationship.”

When stripped to the barest of its bones, this predicament comes down to the inherent objectification of women that continues to be prevalent in all social and economic strata of our country. It is assumed that through marriage a woman is permanently signing over her body to her husband, and that asking for consent ceases to be relevant because it is implied. Marriage is not a legal loophole to ownership.

The same notion persists when a woman withholding sex from her husband without extenuating circumstances can be brought in front of a judge for ‘cruelty’. A woman not being in the mental space to sleep with her husband is incomprehensible and cruel but a man forcing his wife to sleep with him and raping her is deemed completely acceptable. There is no explanation for this hypocrisy but the – frankly ludicrous – idea of male superiority, perpetuated by men themselves. Marital rape is still rape and should be condemned and punished as such.

In recent years, there have been a few rulings by High courts nationwide that have allowed the prosecution of a marital rape perpetrator, such in the case Nimesgbhai Bharatbhai Desai v. State of Gujarat in 2018 where the Court censured the ‘implied consent’ in a marital relationship. It also said that “dehumanized treatment of women will not be acceptable” and that “marital rape is not a privilege of the male partner in a marriage, but instead a violent conduct and an unfair treatment that should be criminalized.”

Similarly, the Kerala High Court in 2021 ruled that marital rape was a valid ground for divorce. The Court ruled that “treating your female partner’s body as something owed to the husband and engaging in sexual acts against her consent or will is nothing more than marital rape.”

While such rulings are heartening and set a correct precedent, the lack of an established law criminalizing marital rape (in essence, not striking down the exemption) allows for a grey area in the processing of individual cases, especially in the lower-level courts.

On February 7th, 2022, the Delhi High Court called upon the Union Government to make a clear stand on the issue within a period of two weeks and the Centre responded with an affidavit supporting the exemption. They argue that the legislature will be helpful in ‘protecting men from possible misuse of the law’ by wives and ‘protecting the institution of marriage.’

Translated into looser terms, the Union Government of India chose to respond to a call for justice by lakhs of citizens that suffer at the hands of their spouses with sympathy to the men that may potentially be targeted by such a law. They also implied that the institution of marriage essentially transferred the bodily rights of a woman to her husband.

In May 2022, a bench of two judges was asked to rule on the matter and while Justice Rajiv Shakdher ruled that the exception be struck down, Justice C Hari Shankar disagreed, meaning that the decision is further delayed till a new bench can rule on the matter again. In essence, at present, the laws regarding the sexual autonomy of married women are identical to those established in colonial times, where a similar exception existed to protect the ‘conjugal rights’ of a man.

The crux of the matter is that even if a law is put in place, it would not completely solve the problem. While it may dissuade some potential rapists, and even begin the reparations long due to Indian women, a law alone is not a guaranteed preventative measure. A murder conviction does not resurrect the victim. Similarly, the woman still has to live with the scars of having been violated, in a country where victims are shamed more than perpetrators. No violent crime against women can be eradicated till we stop viewing them as prospective assets and unlearn the misogynistic views instilled in us by society.

Aditi Singh

Delhi South '24

Aditi is a reader-writer-cake enthusiast who uses writing to channel her thoughts and ideas. She is a second -year mathematics major who enjoys writing pieces that force the reader to challenge their existing notions. She also talks about navigating a male-centric heteronormative world as a queer teenager