Rape Punishable Even For Husband: Why K'taka HC's Recognition Of Marital Rape Is Important

In an empowering move, the Karnataka High Court on Wednesday upheld the rape charges against a man accused by his wife. "A man is a man; an act is an act; rape is a rape, be it performed by a man - the husband - on the woman - wife," the powerful judgment observed. This comes amid a brewing national debate in the country on the law surrounding the recognition of marital rape in India.

The bench of Justice M Nagaprasanna further took stock of the sexist tradition that claims "husbands are the rulers of their wives, their body, mind and soul," and called on it to be "effaced." The case being heard concerned a woman who, in 2017, accused her husband of domestic and sexual violence, leading to an FIR filed under various sections of the Indian Penal Code (IPC), including section 376 (rape). Read more on the judgment here.

The Karnataka HC's pronouncement stands in contrast to the rape law exception in the IPC, which states, "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape."

The exception has been the subject of multiple controversies, especially in recent times with the Delhi High Court hearing a batch of petitions fighting for the law to criminalise marital rape. Those against the exception claim that it allows men a free pass to rape their wives. Those defending the rape law exception do so upon the argument that it would endanger husbands with false cases. Read an opinion on it here.

Suggested Reading: Marital Rape: We Can’t Ignore Sexual Violence Behind Closed Doors

Marital rape is India's shameful, unrecognised reality occurring indiscriminately behind closed doors. Since the institution of marriage is sacred to our social culture, working in tandem with the male-dominant designs of patriarchy, marital rape is often only spoken about in hushed tones.

Because it is understood here that when a woman enters a marriage, she strips herself of any agency she may have had at the door and relinquishes her sexuality to her husband. After that, he may coerce her for sex, force himself on her, or physically abuse her, and no one asks. It becomes a private affair between husband and wife.

Rape is rape. Period. Whether it happens on the streets or in bedrooms. 

To our warped perceptions, in ">marriage, forced sex is not rape. It is just sex, which every man claims to have a birthright over, just as he does ownership over his partner's body. The question rape law exception critics ask is, why should we differentiate between rape that happens in the bedroom and rape that happens on the streets? Why does just one of these situations make our blood boil while the other is considered a natural part-and-parcel of the relationship that foregrounds it?

Dr Pam Rajput, revered academician and activist who was part of a central committee for policymaking against rape in India, told SheThePeople, "Nowhere is it written that the sanctity of marriage is to be sustained on the violation of a woman’s body. It is high time for these patriarchal notions to not be mixed with respect for culture. How can the sanctity of marriage be maintained if the sanctity of women is not maintained?"

Suggested Reading: Politicians Talking About Consent Are We Ready To Acknowledge Marital Rape As A Crime?

When the question of criminalising marital rape was the hot topic for social media forums, as the Delhi HC simultaneously heard arguments for and against, many men bizarrely stood up in 'boycott' of marriage. (As if their families would allow them that luxury!) Their fear was women misusing the marital rape law to falsely implicate their husbands in cases.

Once again, our tendency to completely ignore the issue at hand and do everything in our power to invalidate the violence women are subjected to was on full display. Here's what some of the reactions looked like.

Karnataka HC Marital Rape Judgment Is Significant

Why the Karnataka HC's acknowledgement of marital rape is significant, even though the judgement didn't attempt to nullify the exception, is because it recognises the gender unequal foundations on which marriages in India are built. It was not the first court to do so, since the Kerala HC upheld a similar observation last year, saying marital rape was valid grounds for divorce.

Denying women bodily autonomy and independence, and seizing their dignity by allowing them to be objects of violence in marriages is what the rape law exception implies. Isn't this exactly what the general public consciousness too is on marriage and sex within its ambit? The judiciary and the citizenry borrow from each other.

So until our courts begin pushing this conversation forward in honest recognition of gender oppression, in and outside of marriage, how will the idea find legitimacy among people?

Views expressed are the author's own.