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Explained – the Marital Rape law debate for the rest of us

Marital Rape or ‘Rape inside of marriage committed by a husband on his wife’ has been a subject of recurring debate in India.

Every government has had to deal with the matter in some form, either because of NGOs filing PILs or MPs bringing it up for discussion. For one reason or the other, all governments – be it NDA or UPA – have avoided venturing too much into this territory.

Bit of background first:

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For better part of the last century, the concept of marital rape has been missing in narratives of most nations including the west. Some commentators in India try to pin the blame for lack of marital rape law in India on the usual “Indian regressive culture”, however most nations criminalized Martial Rape only after UN’s “Declaration on the Elimination of Violence Against Women” in 1993.

It was actually Sir Matthew Hale, Chief Justice of England, who in his book ‘History of the Pleas of the Crown (1736)’ proclaimed – “But 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” – thus negating the concept of marital rape altogether. Perhaps he was directly borrowing from traditional Catholic preaching that doesn’t accept this concept. His thoughts on the subject continued to form the basis of English law till 1993.

India, having borrowed heavily form British Era laws, of course, also inherits the flaws; one of them being the case of Marital Rape law.

So why are we talking about it?

On Thursday, Union Minister for Women and Child Development Maneka Gandhi told Rajya Sabha that the concept of marital rape could not be applied in India. She was responding to a question and her response was verbatim to an earlier response in April 2015 by Minister of State for Home, Haribhai Parthibhai Chaudhary, who had said:

“It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament.”

Back then, the question was raised by DMK MP Kanimozhi, who had moved a private member’s bill and asked the government if it planned to bring in a new law or remove exemption of “rape inside of marriage” from the section 375 of the Indian Penal Code (IPC), which deals with Rapes.

Kanimozhi had based her question on a survey by UNPFA that proclaimed “75% of women in India are victims of rape”, which is incorrect. The survey (pdf link) had only surveyed 6 states with a very small sample size, and only UP showed 75% of “intimate partner violence”. But it does not mention if that “intimate partner violence” is “rape”.

Irrespective of whether the stats are insufficient or exaggerated, there is enough evidence out there to believe that a large number of rapes are committed by someone the victim knows, and among those rapes, marital rapes count for a good percentage. An NFHS survey, which seems to be the most reliable indicator of this, pegged marital rapes faced by women at 8.5%.

That leaves us with no other option but to finally face and deal with it. And with a government at the center that made its grand march to power fueled by votes from women too, all the more reason to not push it under the carpet.

What do the current laws say?

The section 375 of the IPC deals with rape and it criminalizes the act, but it makes an “exception”. The exception says “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

You might wonder why the law says the wife being under 15 years of age, while the legal age of marriage is 18 years. It is because under the Muslim personal law, a woman can marry when she reaches 15 years of age.

This exception in the IPC section 375 is the reason why the concept of marital rape is not applicable in criminal cases.

Justice Verma report, which was presented after the infamous Delhi gang-rape case (the Nirbhaya case), had suggested to delete this “exception”, but the then UPA government skipped the suggestion. And now, the current NDA government also appears to be in no mood to delete the exception.

Is there any logic for not removing this exception?

Many argue that such issues related to married couples are covered in the “Protection of Women from Domestic Violence Act 2005” and thus there is no need for a special law to cover marital rapes or to delete that exception part in IPC section 375.

The Domestic Violence Act can be argued to cover the offense of marital rape because “sexual abuse” is defined as one of the act or conducts that constitutes “domestic violence”.

However, there are two problems with this act, due to which it is considered inadequate to deal with cases of marital rapes:

1. While the term “sexual abuse” is mentioned, the act doesn’t explicitly define “rape” as is defined in the section 375 of the IPC.

2. The Domestic Violence act has been deemed as a “civil law” by the courts and thus the accused can get away without any jail term.

So as it stands, there is no recourse for a woman who has faced the horror of rape in the hands of husband if she wishes to file a criminal case against him.

What are the arguments for not criminalizing marital rape?

1. Misuse of law like IPC section 498A: according to some activists, as huge as 85% of dowry cases turn out to be false and India cannot deal with another failed catastrophic law that will amount to “legal terrorism”. Many men’s rights activists are especially wary of criminalizing marital rape, as they feel that it will be misused even more than the anti-dowry law.

2. Burden of proof: it is going to be hugely challenging to prove lack of consent when a husband and wife are involved. In conservative societies, marriage itself is considered as that consent between a man and a woman. So the burden of proof is going to be huge and legally complex.

3. Religious obstacles: if marital rape is criminalized, it could interfere with the civil laws of many communities e.g. many orthodox Christian or Muslim communities don’t believe in the concept of marital rape. A conflict between civil and criminal laws could give rise to constitutional challenges.

4. Slippery slope: there are some who argue that if the concept of consent is so strictly going to be implemented in the institution of marriage, where does one stop? Could it be applied next to the crime of stalking or voyeurism? That will make marriages almost unworkable as many acts could be wrongly interpreted.

5. Gender neutrality: arguments to make the definition of ‘rape’ gender neutral has been put forward on many occasions, and the same argument is put forward in case of marital rapes too. Even if the exception of IPC section 375 is removed or criminal provisions are added to the Domestic Violence act, husbands will not be able to use those, many argue.

Some of the above issues could have easy solutions and some could indeed be complex e.g. perhaps, in the absence of clear proof of rape, the law can give one benefit of doubt to a husband who has never been previously reported for any cases of violence or abuse to not turn a rapist suddenly.

However, it’s imperative that the above issues are also discussed when marital rape is discussed.

So what is the way forward?

Much like every other civilized nation that swallowed the bitter pill, India too will have to criminalize marital rape. So the question really is of “when” and “how” and in “what form”. The way forward is to hold more public consultation, get more hard data and create a road-map for criminalization of marital rape.

The solution is not to sweep it under the carpet but to wake up to the fact that the concept of marital rape in itself is not totally outlandish. Unfortunately, the current attempts by the political class – as is evident by the acts of both the UPA and NDA governments – appear to be ignoring the issue rather than taking it heads on.

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