ADDRESSING MARITAL RAPE: THE NEED FOR LEGAL REFORM IN INDIA

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Author: Tanvi Dabbi, third year law student at UPES, Dehradun.

INTRODUCTION:

Marital rape, which is defined as non-consensual sexual intercourse between married partners, has continued to be a contentious and mostly neglected issue in the Indian legal and social framework. Thus, in India, even with the advancement of women’s rights and protection against domestic violence, the IPC does not recognize marital rape as rape except in cases where the wife is under a certain age. Despite ongoing discussions in courts and campaigns for the recognition and criminalization of sexual assault in marriage, this gap in the law is yet to be filled. Such legislation will reflect the strong cultural and social values entrenched in our thinking regarding the institution of marriage, which has been construed as a sacred institution, thus implying consent in the act of sexual intercourse and diminishing personal autonomy and rights in favor of marital privacy.

The continuing absence within the legalized framework is indicative of a sharp contrast with any of India’s international human rights commitments. International human rights organizations and UN committees from the general recommendations strongly recommend the criminalization of marital rape, advancing that this absence of legal safeguards against marital rape only serves to perpetuate violence and infringement of rights against women. Legal scholars, activists, and policymakers, during recent years, have urged for legal reforms aimed specifically at this issue. The push to criminalize marital rape is gaining momentum against the backdrop of heavy social and political resistance seeking to oppose any legal structure that undermines women’s rights, independence, and dignity.

The historical context of marital rape in India becomes interwoven with the political, social structures and colonial establishments that existed in India. In 1860, the Indian Penal Code (IPC) was drafted during the British colonial period; Section 375 explicitly excluded marital rape. This legislation remains a Victorian relic, when wives were treated as the possessions of their husbands, with marriage implying a consent that was given. Such a legal stance further matured the patriarchal view that marriage rendered the husband’s sexual claims upon his wife absolute, regardless of the autonomy and authority of the female partner.

The exemption of marital rape was among the many colonial laws that India’s legal system carried forward after independence. Even with progressive changes made to the IPC, this provision that excludes marital rape continued to exist alongside laws that target the protection of women’s rights and the eradication of domestic violence. Marital rape has faced resistance because of deeply inculcated cultural and social norms that underscore privacy and family unity above individual rights. Despite some recognition of women’s rights in marriage through statutory reforms and judicial precedents, the law continues to be silent on the question of marital rape itself, thereby indicating a stiff resistance in addressing deeply entrenched gender norms and the power structure in Indian society.


LEGAL BACKGROUND:

In India, the legal framework surrounding marital rape stems from archaic laws heralding colonial rule. Thus, Section 375 of the Indian Penal Code, enacted in 1860 during British rule, defines rape but specifically allows for marital rape. This section essentially states that sexual intercourse with a wife is not rape, as long as she is above the age of consent; that is to say, a woman should not be less than fifteen years of age. This exemption, therefore, leaves married women unprotected by the law against their husbands in the case of non-consensual sexual relations, as it entails an established philosophical approach that consent is present from a woman at all times when married to her husband.

The exemption from marital rape still exists, despite numerous changes in the laws concerning women’s rights. The Protection of Women from Domestic Violence Act, 2005, does not consider marital rape to be a crime. Instead, it has provided for some further protection for women who may have suffered domestic violence, including sexual violence. Following the gang rape of Nirbhaya in Delhi in 2013, the Justice Verma Committee proposed criminalizing marital rape. However, vigorous opposition informed primarily by social and cultural issues thwarted consideration of those suggestions by the Criminal Law (Amendment) Act, 2013. As such, the state’s legal machinery recognizes sexual autonomy for single women, but by all accounts denies it to married women. It brings to the fore a chasm in India’s commitment to human rights and gender equity.

SUPREME COURT JUDGEMENTS AND INTERPRETATIONS:

Although it did not decriminalize marital rape, the Supreme Court of India has had its hands on judicial decisions in various significant cases related to marital rape and sexual assault in marriage. Through the interpretation of an exception under the Indian Penal Code, 1860 regarding marital rape, the Supreme Court of India took an eminent stand in the Independent Thought v. Union of India case in 2017. The Court ruled that consensual sexual relations with a wife of 15 to 18 years of age would qualify as rape so that young girls would be protected against sexual exploitation within marriage. This ruling created a yardstick for future debates on the greater expendable subject of marital rape, while at the same time marking a landmark in recognizing the individual rights of young married women.

However, in instances like Joseph Shine v. Union of India (2018), where the Supreme Court decriminalized adultery, the autonomy and dignity of individuals within a marriage were flagged. This judgment reiterated that the right of a married woman to sexual autonomy was to be respected and that any non-consensual sexual activity would violate the essential rights of a woman. Although the issue of marital rape was not on trial, the explicit recognition of personal liberty and bodily integrity by the Court represents a call to amend the law and criminalize marital rape while reinforcing the need for consent for all sexual intercourse, even in marriage.

HUMAN RIGHTS PERSPECTIVE:

Marital rape is a serious infringement on women’s rights to equality, dignity, and personal integrity within the framework of human rights. The Universal Declaration of Human Rights (UDHR) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) highlight the importance of safeguarding individuals from violence and discrimination, and India is a signatory to the treaty. By maintaining the idea that a wife’s body is owned by her husband and stripping her of agency and autonomy, marital rape erodes these principles. Human rights groups argue that the absence of laws against marital rape essentially legitimizes violence against women within the private sphere of marriage, rendering them vulnerable to mistreatment.


Additionally, the UN has consistently highlighted that legislative changes are essential to tackle marital rape as it constitutes a serious infringement of human rights. The Indian government’s postponement in criminalizing marital rape highlights broader issues related to gender inequality and cultural standards that prioritize marital stability over personal freedoms. Activists for human rights contend that fully achieving women’s rights in India relies on recognizing and prohibiting marital rape. They stress that to guarantee equal protection under the law and maintain India’s international human rights commitments, legal safeguards against sexual violence must be provided to all women, irrespective of their marital status.

IMPACT ON VICTIMS:

Marital rape in India remains an emotional topic because of inherited social customs and legal-related factors. As marital rape is not expressly mentioned in the Indian Penal Code, only if the girl’s age is less than 18 years. This provision, which stems from colonial-era legislation, gives credence to the unrealistic and pernicious doctrine of the unqualified consent of marriage to all sexual acts. Many females are trapped in an abusive marriage because they cannot seek justice or safety when marital rape occurs and cannot identify any legal recourse when that happens. It does not only violate the autonomy and bodily integrity of married women, but the legal loophole also reflects and perpetuates the very gender imbalance in Indian society.

In India, the aftermath that victims of marital rape go through is profound and multi-layered in effect. Rather than seek help or report incidents of marital rape, we women endure quietly, suffering immense psychological trauma, bodily trauma, and social stigma from a lack of legal recognition and protection. The absence of any criminalization encourages abuse and further emboldens the power dynamics that allow for this violence to go unpunished. Those wanting justice are subjected to added marginalization because of a certain society where marital stability and family honour are prioritized over individual rights, thus discouraging them from reporting abuse or seeking help. Legalizing marital rape is pertinent to creating an alternative dignified space for women in the socio-cultural milieu of India, to ensure justice, and simultaneously to deconstruct the patriarchal hegemonies that gender oppression of women.

Comparison With Other Countries:

The context of cultural, legal, and social diversity as manifested in the marriage rape law speaks to the different countries it is implemented in. Countries such as the USA, UK, Australia, and other Western nations tend to legally categorize marital rape as a crime. This makes it so that, within the legal system, there is no distinction between rape that happened in a marriage and outside of it. These countries have made strides in the acknowledgment of the autonomy and rights of the spouses wherein they provide support systems and legal remedies to the victims. On the contrary, direct comparison with, in cases like India, one where rape is not a criminal charge, certain exceptions are made for legal protection in favor of married women. Clearly, it is indicative of the struggle toward balancing traditional marriage practices and the modern concept of human rights.

Contrastingly, a few Asian and African countries have made progress in criminalizing marital rape. Nepal in 2006 made marital rape a crime, as it considered it a severe infringement on women’s rights. Also, the South African legal system recognizes and punishes marital rape and provides a basis for illegally allowing the victim inside a marriage to seek protection. These cases highlight the reality that a change of legislation is achievable and can become a powerful tool in protecting the rights of women even if the states face cultural and social opposition. The intended comparison puts a big question mark next to India’s reluctance to change its legal provisions regarding marital rape. The country has to take a cue from those other nations that have been able to firmly integrate such protections in their codifications. This serves as an anchor for gender equality and project empowerment of all persons regardless of marital status.

CONLUSION:

In summary, the absence of statutory laws in India that would render marital rape a crime shows a major lapse in the domain of women’s rights and protections in marriages. The spirit of autonomy and consent, which entitles women after they have entered marriage, is still not duly acknowledged and respected within such legal vacuum. This problem can be addressed purely through an integrated approach that will incorporate legal reforms, media and public awareness campaigns, and a change in the notion of marriage and gender roles. By adopting the criminalization of marital rape, India would not only have rewritten the laws in accordance with international human rights standards but also enhanced the safety, equal rights, and dignity of every woman.

On close analysis, should marital rape be made a crime in India, its ramifications on gender relations and social norms will be substantial. The next steps after legal reforms would involve enhancing support systems for victims, such as counselling services, safe shelters, and effective reporting mechanisms for sexual assault. Furthermore, for a shift in mindsets on consent within marriage to take place, education would be critical in dismantling prevailing patriarchal norms. Such studies, focused specifically on countries where this crime has long been decriminalized, can shed light on possible challenges and upon the applicable methods. For Indian wives to secure justice and equality, therefore, it is imperative that legislation, civil society, and the public collaborate within the broader effort to interrogate and dismantle systems that sustain gender-based violence in marriage. 

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