A husband having unnatural sex with his wife without her consent is not an offence, the Chhattisgarh high court said when acquitting a man convicted by a Bastar trial court of rape and unnatural sexual offences and sentenced to ten years in jail. The reason stated for overturning the judgement was that:
“Sexual intercourse or sexual acts by a man with his wife is not a rape, and therefore if any unnatural sex as defined under Section 377 [of the Indian Penal Code] is committed by the husband with his wife, then it can also not be treated to be an offence.”
There has been backlash over the judgement, but is this happening for the first time? If not, how can it be ensured that the judgement becomes the last of its kind? For this, one has to dig deep into the core of the problem.
In the time of AI and globalisation, India still has arranged marriages, and that too where daughters are often not ‘accepted’ without dowry; though dowry has undergone a makeover with new gift-related terminology that appears more decent and neutral, it still lives. Such marriages also ensure that the wheels of casteism run smoothly, as a bride or groom must bond only within the caste into which they are born.
Although ‘love marriages’ are becoming more common, they still remain as rare as a hen’s tooth. Various problems are ingrained in the entire marriage ecosystem in India, but “How dare you?” is the question that is posed the moment fingers are directed to problems and issues in this ‘sacrosanct’ institution.
Marital rape exception rooted in the idea that consent implicit in marriage
Last year, the Supreme Court had heard petitions seeking an amendment to the British-era Section 375 of the Indian Penal Code, which made two exceptions while defining rape.
Exception 1. A medical procedure or intervention shall not constitute rape.
Exception 2. Sexual intercourse or sexual acts by a man with his wife, the wife not being under eighteen years of age, is not rape.
Hence, a man can never be prosecuted for raping his wife. Such is the belief of a society that thrives on the idea of marriage as a licence to sex; the law criminalising rape does not consider sexual violence with one’s own wife as a form of rape.
Marital rape – which in India is a form of colonial baggage – has been outlawed in over a hundred countries. Britain itself criminalised it in 1991.
Some have pointed out that the origins of the marital rape exception can be traced back to the 17th-century English jurist Matthew Hale, who said in a posthumously published criminal law treatise 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”.
Hence, marriage as such defined regarded the wife as a thing or property of the husband.
Our neighbouring countries like Pakistan, Bangladesh, Indonesia and China, as well as other countries such as Saudi Arabia, Egypt and Iran to name a few, do not consider spousal rape a crime.
But our neighbour Nepal defies the trend. Its Supreme Court criminalised marital rape in 2006 and Section 219(4) of the National Penal Code Act, 2017 states: “If the husband commits rape on his wife during the existence of marital relationship between them, he shall be liable to a sentence of imprisonment for a term not exceeding five years.”
Also read: The Chhattisgarh HC Marital Rape Judgement Has Perversity and Illegality Writ Large
Justifications for marital rape are many
There a few rationales that tend to be given while condoning marital rape.
For instance, in 1949 in R v. Clarke, a British judge stated in line with Hale’s views on marital rape that:
“… on marriage the wife consents to the husband’s exercising the marital right of intercourse during such time as the ordinary relations created by the marriage contract subsist between them. The marital right of the husband in such circumstances exists by virtue of the consent given by the wife at the time of the marriage and not by virtue of a consent given at the time of each act of intercourse as in the case of unmarried persons.”
Concerns surrounding evidence are also raised, claiming that it is difficult to prove rape between a husband and wife and that it is also possible to fabricate complaints.
But the argument that a wife would fake marital rape allegations for property or some other gain is not convincing. A wife looking to file a fake complaint can do so under crimes other than rape, and when it comes to proving marital rape, the same procedures that are used to investigate and verify cases of non-marital rape can be employed.
Several questions that are shot off during discussions about marital rape include:
- ‘Why would a man marry if he cannot have complete authority over a woman’s body?’
- ‘Why would a man become his family’s breadwinner if he could not have sex whenever and wherever he wants?’
- ‘What about the man’s needs? Isn’t this the Westernisation of India?’
- ‘Why would a husband force his wife to have sex with him?’
Two things at the heart of the matter
The root of the problem has two aspects to it: the suppression of women’s sexual needs and a lopsided understanding of marriage.
First, when it comes to sexual needs, it generally appears that women’s sexual needs are locked up when she is married; they are curbed and are not brought to the fore.
Women live, reproduce and die just like factories meant to produce children, and their needs are left in abeyance as if the sole task of copulation is to produce children. Discussing or expecting sexual pleasure is stigmatised, almost as a moral transgression, while pregnancy and childbearing appear to be a woman’s obligatory duties.
As a result, women may find themselves distanced from their sexuality, with their desires overshadowed by societal expectations and moral imperatives. This can lead to a gradual estrangement from sexual fulfilment.
Men generally have the ability for a single orgasm, whereas women possess the potential for multiple orgasms. Many women around the world have probably lived and died without knowing the gift of orgasmic joy. Mainly for the protection of men’s ego, women seal their lips, and this silence alienates them from their sexual desires, leading to the decline of interest in sex.
Another problem is that the sexual desires of men are paid more attention to than women’s – even the walls are full of advertisements that read ‘mardana kamzori ki samasya’ (‘solutions to weak manhood’) and ‘sex power kaise badhaye’ (‘how to increase sex power’) – which go unheard.
Next is the traditional, lopsided notion of marriage.
Marriage across the globe means the unity of two persons, but in this traditional unity, the man retains greater power. The woman’s legal, financial or social identity is merged with the husband’s upon marriage. Her legal or social existence is consciously or unconsciously suspended. Even when it is not suspended, it gets incorporated into and consolidated with that of the husband. He attains rights over the woman and sees his wife as property to be owned, used and protected.
Marriage does not remain a friendly partnership or a loving bond where both the husband and wife share equal rights and have equally valued takes on various matters; instead, it becomes a sexual contract where the man remains dominant.
Is the government sympathetic to the agony of women?
This concept of marriage has to be changed. Marriage is not ordained in heaven, and the issue of marital rape won’t be solved there either. It is the responsibility of earthly courts and the justice system to address and resolve this problem and to put an end to the reduction of women into a subhuman category.
Marital rape is a situation in which a woman feels utterly helpless; the doors and windows have been shut in her face. The non-criminalisation of marital rape suggests that Eve’s concerns do not bother Adam.
As long as women are voided of their agency and individuality in intimate relationships, are reduced to corpses while making love and are dehumanised, marital rapes are bound to occur.
But does this agony stimulate any reflective response from the government or evoke its consideration?
On the contrary, the government opposed petitions demanding the criminalisation of marital rape, saying that doing so would be “excessively harsh,” may seriously impact the marital relationship and may lead to “serious disturbances” in the institution of marriage.
When 83% of married women aged 18-49 who reported facing sexual violence said their husbands were the perpetrators, what remains “excessively harsh” is silence on an issue which is linked to a significant proportion of the population.
If empowering a woman with rights over her own body affects and disturbs the institution of marriage, then the disturbance seems imperative.
Priyanka Bharti is a senior research fellow at the Jawaharlal Nehru University and a national spokesperson for the Rashtriya Janata Dal.
