Here's A Fact: Marital Rape Is Rape

Another fact staring us in our faces is that 18 per cent of Indian women are not able to say no to their husbands if they don't want to have sex with them. The same was highlighted in the National Family Health Survey 5. 

This number is higher than the national average of 17% recorded by NFHS 3 (2005-06).

In India, marriage is a sacred institution based on mutual love and understanding. This social institution was created for the sustenance of mankind, with the main purpose of establishing a love relationship that lasts forever. In 2022, this is still the law in India: A man cannot be charged for raping his wife. The Delhi High Court ruled that 'a married woman is not a chattel. She has feelings and her consent should be taken before sexual intercourse occurs,' while also noting that 'it is important to stress that marital rape is not allowed in any society.' 

While on May 11, the court gave a split judgement after hearing multiple petitions. While one judge ruled that the exception in rape cases given to husbands is unconstitutional, another judge disagreed.

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Marital Rape Is Criminal

Marital rape is still not considered as a criminal act in India and women who are forced to undergo it continue to live in silence. This is largely because their husbands are not just their sexual partners but their “protectors” and “providers” according to patriarchal standards. Rape is defined as sex with woman or girl forcibly and against her will, or without her consent. However, Section 375 of the Indian Penal Code had two exceptions: A medical procedure would not constitute rape and secondly when a man has sexual intercourse with his wife who is above 18 years of age. However, these provisions have lately been challenged in front of the Supreme Court which has now formed a panel to study them in detail and recommend any changes if needed.

The practice of marital rape is allowed in India. The exception granted to husbands over their partners by Section 375  of the Indian Penal Code says that sexual intercourse or sexual acts by a man with his own "wife" would not constitute as rape when the woman is above 18 years of age.  This has come under scrutiny by several activists who feel that this law is unconstitutional and violates an individual’s right to bodily integrity, personhood and autonomy. 

Marital Rape is an evolving subject with many researchers and writers still questioning its existence. The requirement to look into this crime under the law was brought out by members of women’s rights organisations who filed a petition before the Supreme Court on February 14, 1996. It was held that marital rape does not exist in India since the word ‘rape’ is defined by the statute itself as being non-consensual sexual intercourse with a woman without her consent and against her will. In other words, penetration alone would constitute rape.

But this definition excludes marital rape where there is consent as any woman who has married agrees to have sex with her husband as part of marriage contract and thus effectively giving him license to have sex whenever he wants.  It is hardly surprising in a country like India,  marital rape is never considered as a serious societal issue. Women who undergo marital rape are unable to fight the sexual aggression caused to them. Although they seek help from social service agencies, this needs to change.

The current scenario in India is quite alarming because of the increase in sexual crimes against women. These types of offenses are on a rise in India and there are several reasons for it. One of them being that rape by one's husband was not considered wrong at all until recently. Women have always been regarded as inferior in our society. They are not just expected to obey their “husbands” but also considered to be the “property” of men. If a woman is raped by her husband or someone related to married life, then it becomes a domestic issue rather than a problem with the criminal law. This leads to women falling into depression, mental trauma and many other issues. It is a violation of constitutional rights and the law should be amended in order to include it under the Law of the land. Besides, women need to be given a sense of agency in their marriage, the freedom to choose whom they would want to marry and when they want to have sex with their husbands. 

Views expressed are the author's own.