Like any place on earth, rape is a crime in India. However, if the rapist happens to be the victim’s husband, rape is no crime in our country. Indian men are exempted from criminal prosecution for marital rape under an 1860 Act if the woman happens to be above 18 years of age. The wife may get a divorce on this ground but has no right to press criminal charges against the assaulter. It is strange to cling to an archaic colonial-era law for a country that had given many progressive rights to its women even before the so-called liberal western counterparts had done so.
In 2017, the government opposed the removal of the statutory exception in Section 375 of the IPC. The Union Minister for Women and Child Development stated that the government was introducing a comprehensive amendment to all criminal laws. Regarding marital rape, she opined that it was not advisable to condemn every marriage as a ‘violent’ one and every man a ‘rapist’. The statement gave away the government’s discomfort in dealing with this sensitive subject in a male chauvinistic society like ours.
In 2016 itself, the government had rejected the concept of marital rape, saying we cannot apply the law to the Indian context. Various factors were stated for this stand. It included educational literacy, poverty, myriad social customs, varied religious beliefs, and society’s mindset to treat marriage as a sacrament. On February 3 this year, the government once again requested the Delhi High Court to defer the hearings in a petition seeking criminalisation of marital rape.
The government says it is in a consultative process with stakeholders. Does one wonder who the stakeholders are in the case of marital rape? The Centre’s legal counsel also pleaded that it would have far-reaching consequences and socio-legal implications and needs a comprehensive approach rather than a legal one. The court taking decision ‘merely’ based on the argument of a few lawyers may not serve the end of justice. “What appears as rape to a wife may not appear so to others” was another strange argument as claimed in an earlier affidavit of 2017. The government council had expressed the fear that criminalising marital rape would destabilise the institution of the marriage apart from being an easy tool for harassment of the husbands. It even cited the alleged misuse of Section 498A of IPC—cruelty by husband or his relatives against a woman—to show how laws can be abused by women for harassing their husbands.
None of these arguments is tenable and desirable in modern society. As per our laws, living-together relationships, sex between consenting adults etc are legal. If the woman files a rape complaint against her partner, he gets no exemption from criminal proceedings that his married counterpart enjoys. Are we saying marriage is a licence to rape one’s partner? Even in living-together relationships, the chances of false rape allegations or domestic harassment are there. The possibility of extortion and blackmail exists in transactions and contracts. All laws can be misused, including prevention of atrocities against scheduled castes and tribes, anti-dowry law or the recently passed triple talaq law.
The possibility of misuse is no justification for not having the law. Why should the woman lose her fundamental right just because she is married? Families often arrange marriages in India, and most women have little choice regarding their life partner. Why should the responsibility of protecting the culture and institution of marriage be solely at the shoulders of the women? Marriage is a relationship that is based on mutual love and respect. The wife is not the property of the husband to use or abuse at his will. If the stability of our society and culture is solely dependent on such unequal relationships, it is time to re-evaluate that culture.
Once, the same tradition demanded untouchability, caste discrimination and many such inequalities. We got rid of them, at least in the eyes of the law, and our civilisation hasn’t collapsed. Nepal, which shares the ancient Indian culture, did it way back In 2006. Except for a few Islamic countries and communist China, almost all countries have made marital rape a crime. It is a shame that we cling to the Victorian era definition of marriage. The government had done a bold and commendable act as far as the banning of triple talaq was concerned. It should show the same progressive mentality in criminalising marital rape too.
Anand Neelakantan is the author of Asura, Ajaya series, Vanara and Bahubali trilogy and can be reached at mail@asura.co.in.