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Marital Rape: The Befuddled Indian Law

We have seen the ignominious use of loopholes in almost all walks of life, and this is one such cause where the law has essentially given crime a ‘get out of jail free’ card. [1]Isn't it funny that on one hand, people worship female goddesses and call her Ma (mother), and on the other hand, they abuse their wife mentally, physically and emotionally. This striking contrast truly makes me wonder if that is the purpose for which women exist; to simply be used as per people’s convenience.

After giving it some thought, I looked up marital rape, which is something that many of us aren’t even aware of. Despite living in a country built on sanskaar, the law allows a man to rape his wife, but consensual premarital sex is socially frowned upon. According to Section 375 of Indian Penal Code, marital rape is not a criminal offence unless the victim is of the age of 15 or below.

Is marriage a license for abuse?

There are thousands of petitions filed for the abolition of marital rape, but action is still yet to be taken, and the judiciary’s defense is that it would “destabilize the institution of marriage and would become an easy tool to harass married men.” In my opinion, that singular statement draws too bizarre of a correlation between the institution of marriage and marital rape.

The rape of a married woman is given far less importance than other archaic patriarchal laws, such as triple talaq. During my research, I happened to come across the story of an interfaith couple that chose to get married. The originally-Muslim girl changed her religion to that of her fiancé’s. Despite doing so, she wasn’t accepted by her partner’s parents. Every night after the marriage turned her life into a nightmare as her husband would get extremely hostile with her. She wasn’t allowed the autonomy to refuse sexual intercourse, and if she ever did, he would beat her and force himself on her. And not once before or during these sexual acts would he ask for her consent. On many an occasion, he would hold a pillow over her face and penetrate her with objects, leading up to the point where she couldn’t even walk. One night, he dragged her off the bed and hit her 18 times with a wooden box and a torch. He thought that she was pregnant, and so he threatened to kill her as well as the baby. On another occasion, he cut her wrists, locked her up in a room, and left her there to die. When she tried approaching her parents for help, their only response was that since the marriage was her decision, she must try to adjust to the situation. For all of these actions, he could be charged with domestic violence and attempt to murder, but not marital rape, as under our judicial system it is not a felony. To me, the element of irony is striking is that the same person who was supposed to make her feel safe turned out to be the person whom she needed to be saved from.

This is just one of many traumatic stories, but unfortunately the issue of marital rape still isn’t a priority of our government. It is almost as though they believe that there are more pressing issues to address than a woman’s right and autonomy over her own body in a marriage.

When it comes to implied consent, there have been judgements such as that of the Gujarat High Court that have ruled against it. In a 2017 case, the High Court ruled that this exemption to marital rape “stems from a long-outdated notion of marriage which regarded wives as no more than the property of their husbands,” adding that “it has long been time to jettison the notion to ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.” [2]Despite that, and innumerous writ petitions to repeal the law, there continues to be a lack of action taken against it.

On the contrary, ‘rape-marriage’, where unmarried rape victims marry their assaulters, has often been suggested as a recourse by Indian courts. However, what they fail to realize is that regardless of the circumstance under which it takes place, rape is rape. And the failure to criminalize any form of it is a complicit acceptance of this heinous act.

In my opinion, a society that provides respect and dignity to women will undoubtedly flourish with nobility and prosperity, but a society that does not allow women the position that they deserve will inevitably face failure, regardless of any other efforts towards progress. And now, after seventy-three years of India being an independent nation, it is finally time for us to free married women from state-sanctioned marital rape and grant them back their rightfully deserved bodily autonomy.






[1] AIR 1996 SC 922 [2] MANU/SC/0046/2000

By Khushi Khanna

(Law Student, NMIMS Mumbai)

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