Source: The Conversation (Au and NZ) – By Saptarshi Mandal, Associate law professor, O.P. Jindal Global University
In late February, a court in Delhi finished hearing a case on married Indian women’s right to sexual autonomy, and now, a decision on the matter is awaited.
The Indian Penal Code, enacted by the British colonial state in 1860, exempts forcible sexual intercourse by husbands upon wives from the definition of rape. This means a man cannot be charged with rape if the victim is his wife. Although rape provisions in the penal code have undergone several changes since then, the husband’s immunity has been retained.
In the current case, which began in 2015, two non-government organisations (the RIT Foundation and All India Democratic Women’s Association) challenged the constitutional validity of the marital rape exemption. According to the petitioners, the distinction that Indian rape law makes among women based on their marital status is unreasonable, and hence, in violation of the equality guaranteed by the constitution of India.
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Why does the marital rape exception exist?
The original rationale for the exemption was derived from 17th and 18th-century English jurists. For Mathew Hale (chief justice of England between 1671-1676), consent to marriage itself implied consent to sex, which once given could not be revoked.Similarly, English judge and politician, Sir William Blackstone argued that if the husband and the wife became one legal entity upon marriage – as was the law at the time – then, logically speaking, the husband could not be charged with a crime against his own self. In short, these jurists stressed the conceptual impossibility of marital rape.
In England, where these ideas originated, and in Australia, where they travelled with colonialism, the exemption no longer exists. The courts in these countries have held the exemption was never part of the common law (unwritten body of laws based on judicial precedents), and that previous judges were mistaken in believing it was.
Why is the Indian government against criminalising rape within marriage?
However, the question before the Indian court is not about the historical validity of the husband’s immunity, but its compatibility with the rights and freedoms guaranteed by the Indian constitution. Successive governments have avoided answering the question directly.
As opposed to the “impossibility of marital rape” thesis taken by the English jurists, the Indian state’s attitude can be described as the “inconvenience of marital rape” thesis.
The Indian state does not invoke theories of the wife’s implied consent to sex with the husband or the merger of her personhood with that of the husband’s upon marriage. Nor does it deny sexual violence takes place within marriage.
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Instead, it refuses to recognise marital rape, citing a range of factors that it claims pose practical difficulties in enforcing a criminal prohibition on non-consensual sex in marriage. In other words, the refusal to recognise marital rape is presented as a policy decision that seeks to balance competing considerations that are equally relevant.
In 2013, India had a reform of its rape laws. And while they broadened the definition of rape in a number of ways, including to acts other than penile-vaginal penetration, the then-government refused to criminalise marital rape on the grounds it would weaken the sanctity of marriage. As an alternative, a parliamentary committee suggested victim wives should opt for divorce or seek remedies for domestic violence.
In 2017, in its response to the NGOs’ petition, the coalition government led by the Bharatiya Janata Party (BJP) stated that since it was not clear what evidence could be used to prove whether a sexual encounter between a husband and wife was consensual, marital rape should not be recognised.
It went on to argue that legally ending the husband’s immunity will not prevent the incidence of marital rape anyway, since legal changes were useless without “moral and social awareness”. Given differences between India and western countries, owing to its poverty, illiteracy, and social diversity, validating non-consensual sex within marriage will not have the desired effect, the government argued.
The current BJP-led government’s position is no different. In the course of the recently concluded hearing, it requested the court defer the hearing so it could consult the state governments on the issue.
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The government affirmed its commitment to protect the rights and dignity of all women, but asked the court to not decide on the matter based on constitutional principles or legal arguments alone, given its far-reaching social implications.
However, the judges refused to accede to that request and continued with the hearing. Meanwhile, in response to a question about the government’s stance on the issue, a minister told the parliament comprehensive reform of all criminal laws was being considered. This process begun during the COVID-19 pandemic and has been criticised by lawyers, legal scholars, and activists for its hurried and non-participatory nature.
Do married women have a legal right over their bodies?
The Indian state has never directly answered the question as to whether Indian women lose their rights to bodily integrity and sexual autonomy upon marriage. Instead, it has pointed to the inconveniences of recognising and enforcing these rights.
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But the long list of inconveniences cited by the state over the years are really not about the judges, the prosecutors, or the police. Concerns regarding the state’s intrusion into the private sphere, difficulties in proving rape, or, the potential misuse of the law are used to mask the fact the one person who will be inconvenienced the most if the marital rape exemption is struck down, is the husband.
We can only hope the Delhi High Court, in its much-awaited judgment, will put the spotlight on what the issue is really about – the husband’s unquestioned claim to the wife’s body.
Saptarshi Mandal does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
– ref. It’s still legal to rape your wife in India. That could be about to change – https://theconversation.com/its-still-legal-to-rape-your-wife-in-india-that-could-be-about-to-change-176797
