- Friday, April 26, 2024
By: Shubham Ghosh
IN India’s patriarchal society, the term ‘marital rape’ is often found to be a burning issue being discussed intensely by the experts of law. Recently, rulings given by two of the country’s courts on the matter have been at odds and it has led gender campaigners and researchers to call for criminalisation of rape within marriage.
Last week, Justice NK Chandravanshi of the high court of the central Indian state of Chhattisgarh ruled that “sexual intercourse or any sexual act by a husband with his wife cannot be rape even it it was by force or against her wish”.
The verdict came after a woman moved the court accusing her husband of treating her cruelly, abusing her and harassing her for dowry days after marriage. She also accused her husband of having unnatural physical relations with her and despite protesting, inserted his fingers and objects in her vagina.
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According to the judge, the accused man could be tried for unnatural sex but discharged the man from facing a trial for allegedly raping his wife.
The court held, “Exception II of Section 375 of the IPC … makes it clear that sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape. In this case, complainant is legally weeded [sic] wife of applicant No. 1, therefore, sexual intercourse or any sexual act with her by the applicant No. 1/husband would not constitute an offence of rape, even if it was by force or against her wish. Therefore, charge under Section 376 of the IPC framed against the applicant No. 1/husband is erroneous and illegal.”
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The court’s verdict sparked an outrage on social media with gender researcher Kota Neelima asking on Twitter “when will courts consider the woman’s side of the story?” Her tweet saw a mixed response. While many said archaic rape laws must be reformed, there were others who suspected the woman’s character for making such complaints.
Are courts ‘male’ in this country? When will they consider the woman’s side of the story? #MaritalRape https://t.co/L0maeIcxkq
— Kota Neelima కోట నీలిమ (@KotaNeelima) August 26, 2021
But it’s not just the social media in India which is divided over the question but also the country’s judiciary.
In late July, another high court – in the southern Indian state of Kerala – ruled that marital rape was “a good ground” to seek divorce.
“The husband’s licentious disposition disregarding the autonomy of the wife is marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty,” Justices A Muhamed Mustaque and Kauser Edappagath said in order.
According to one report, the Kerala court’s ruling gave a new judicial interpretation of the ground of cruelty for divorce as found in Section 13(1)(ia) of the Hindu Marriage Act, 1955.
The Kerala high court judges said that marital rape took place when the husband believed that he owned the body of his wife and added that “such a notion has no place in modern social jurisprudence”.
It held, “Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompasses bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy.”
The law of the British colonial era, which has been in practice in India since 1860, comes up with several “exemptions”, i.e., situations in which sex is not rape and one of them is “by a man with his own wife” who is not a minor.
The idea that works is that consent for sex comes with the marriage and a wife cannot retract it later.
But this idea has been facing challenges across the world and over the years, countries numbering more than 100 have outlawed marital rape. The British have also outlawed it in 1991, saying “implied consent” could not be “seriously maintained” nowadays, BBC reported.
However, India remains among 36 nations where the law still is in the statute book, putting millions of women vulnerable to violent marriages. The scenario has not changed despite a sustained campaign to criminalise it.
As per one survey by the Indian government, 31 per cent of married women have faced physical, sexual and emotional violence from their husbands.
While India has brought in laws against domestic violence and sexual harassment against women, nothing has been done to criminalise marital rape
Professor Upendra Baxi, emeritus professor of law at University of Warwick and Delhi, who believes the controversial law must be cancelled, and even was part of a group of eminent lawyers who made several recommendations on amending rape laws to the parliamentarians, told BBC, “They accepted all our suggestions except the one on outlawing marital rape.”
The government, on the other hand, has been consistently saying that criminalising marital law could “destabilise” the institution of marriage and women could use it to harass men.
But in reality, it is the women who have been found to be petitioning courts demanding the “offending law” to be struck down.
Even international bodies like the United Nations, Human Rights Watch and Amnesty International have expressed concerns about India’s refusal to do so.
The situation has not changed despite many Indian judges admitting that they are hobbled by a law that has no place in a modern society and called for the parliament to criminalise marital rape.
The law is “a clear violation” of women’s rights, and the immunity it provides to men is “unnatural” and the main reason why the court cases are growing in number, Neelima told BBC.
“India has a facade of being very modern, but scratch the surface and you see the real face. The woman remains the property of her husband. Rape is criminalised in India not because a woman’s violated, but because she’s the property of another man,” she added.
“One half of India that is male became free when India became an independent country in 1947, the other – female – half is yet to be free. Our hope lies in the judiciary,” she said, adding that while it is encouraging to see some courts have “admitted the unnaturalness of this immunity”, contrary legal verdicts often overrun these “small wins”.
