Marital Rape: A silent struggle
Marital rape has become a focal point of heated debate in India, as the government’s recent arguments before the Supreme Court challenge the recognition of consent within marriage. The government’s claim that labelling non-consensual sex between spouses as ‘rape’ would be ‘excessively harsh’ and ‘disproportionate’ has ignited a national conversation about the importance of recognising consent in marriage and the need to revaluate outdated legal frameworks surrounding this critical issue.
For the first time, the Indian government officially opposed striking down the marital rape exception, maintaining that criminalising such acts could disrupt the institution of marriage. The Centre argued that while a husband does not have a fundamental right to violate the consent of his wife, calling such a violation “rape” is excessive and disproportionate.
According to the government, marital rape should not be treated in the same manner as other forms of sexual violence because it involves a different set of societal and legal dynamics.
“It is submitted that the act colloquially referred to as ‘marital rape’ ought to be illegal and criminalised. The Central Government asserts that a woman’s consent is not obliterated by marriage and its violation should result in penal consequences. However, the consequences of such violations within marriage differ from those outside it,” says a 49-page affidavit filed by the Ministry of Home Affairs.
The affidavit emphasised the need to protect marital institutions, suggesting that applying rape laws to marriage would unsettle the delicate balance of societal norms.
Historical context and current legal framework
India’s legal framework around marital rape is rooted in colonial-era laws that have failed to keep pace with contemporary understanding of individual rights and gender equality. Under Section 375 of the Indian Penal Code (IPC), marital rape is not recognised as a crime if the wife is not a minor, that is below 18 years of age. This exception to the law has become a focal point in the fight for gender justice, with activists calling for its removal to align with modern values.
The new Bharatiya Nyaya Sanhita (BNS) continues to uphold this exception, stating that sexual intercourse by a man with his wife is not considered rape.
According to UN Women, 20 pc of Indian men admit that they forced their wives or partners to have sex.
The voices of survivors often go unheard, overshadowed by legal interpretations and societal norms. Meena Devi, (name changed), a 29-year-old domestic worker, reflects the deep frustration and anguish felt by many women whose experiences are dismissed by a system that prioritises tradition over justice.
“I have been married for five years and every night feels like a battle I lose. I feel trapped in a life where my pain goes unnoticed. In my heart, I wonder how this can be love when there is no respect for my feelings or my voice. Even my silence is treated as permission,” Devi tells Media India Group.
Women are 17 times more likely to face “sexual violence” at the hands of their husbands than complete strangers, according to a government report.
“Central Government defending marital rape in the Supreme Court and saying that marital rape should be treated differently feels like a slap in the face. It tells me that my suffering doesn’t count because I am married. They say it is a matter of ‘tradition’ and ‘family,’ but what about my rights as a human being? My husband’s needs are prioritised over my own feelings and I feel invisible. How can I be expected to stay silent when my body is not a commodity? If the law won’t protect me, who will?” Devi adds.
Devi’s experience mirrors that of many women whose voices have been overshadowed by societal norms and legal technicalities. Despite the government’s acknowledgment that marital rape “ought to be illegal and criminalised,” the emphasis on preserving the institution of marriage often takes precedence over individual rights and justice.
The silence surrounding marital rape is deafening, with countless women suffering in silence due to societal pressures and the stigma attached to confronting their abusers.
“The government and society prioritise men’s needs over our consent, as if we don’t exist. We are left to suffer in silence, grappling with feelings of shame and isolation. No one understands the trauma that we go through every day. When we try to speak out, we are met with disbelief and blame, as if it is our fault for not fulfilling our ‘duty’ as a wife. It feels like our body is not our own, it belongs to men and we are powerless to reclaim it,” Saima Khan (name changed), a 38-year-old resident of South Delhi tells Media India Group.
She reflects on the deep-rooted societal attitudes that dismiss her pain.
“How can anyone expect us to live a normal life when my marriage has become a prison? The world tells us to keep quiet, to maintain harmony, but at what cost?,” Khan adds.
The 2019-21 National Family Health Survey (NFHS) report shows that “among every-married women aged 18-49 who have ever experienced sexual violence, 83 pc report their current husband and 13 pc report a former husband as perpetrators. Yet, 99.1 pc of sexual violence goes unreported.
Only 32 countries, including India, Afghanistan, Pakistan and Senegal, continue to live in an era where marital rape is not considered illegal.
Choudhary Ali Zia Kabir, Human Rights Advocate, a resident of Jangpura Delhi, critiques the government’s stance on criminalising marital rape, emphasising the deep-rooted patriarchal beliefs that perpetuate this injustice.
“The government’s arguments against criminalising marital rape are not just disappointing, they are embarrassing. When they claim that such a law would be ‘excessively harsh,’ I ask, harsh for whom? For a man who ‘rapes’ his wife? This perspective reveals an unsettling truth: the underlying belief that a wife is a man’s property. Marriage implies consent, allowing husbands to satisfy their sexual expectations by force if necessary, as the government’s own affidavit suggests a ‘continuing expectation’ of sexual access from spouses,” Kabir tells Media India Group.
“We hear claims that marriage exists in a ‘different class’ of law, with its own ‘ecosystem’ of rights and obligations. Yet there is no punishment for a husband who rapes his wife, leaving him exempt from justice. When 3 in 5 women report sexual violence by their husbands, it becomes clear that the institution of marriage is already disturbed. Why should we prioritise the preservation of such abusive unions over women’s safety? The argument that this matter is more social than legal is absurd. Laws can shape societal norms, as we have seen with issues like Triple Talaq and child marriage. We must not accept outdated notions that marriage extinguishes personal consent. We have made strides, recognising matrimonial rights for women in live-in relationships, yet cling to archaic beliefs,” he adds.
Kabir also sheds light on the profound challenges faced by survivors of marital rape in India, emphasising the lack of legal protections and the social, economic and institutional barriers they encounter.
“Survivors of marital rape face immense challenges when seeking justice in India. There is simply no legal recourse since the law does not recognise marital rape in the first place. All one could do is seek recourse in indirect provisions such as cruelty in marriage, which carry a maximum punishment of just three years punishments that are rarely handed down. Furthermore, the social sanctions are severe; society often treats victims of sexual violence as impure and holds them somehow responsible for what has happened. In the case of a wife, she faces additional blame for failing in her ‘duty’ as a wife and is likely to be ostracised. Economically, according to the government’s own data, only 32.8 pc of women aged 15 years and above in India participate in the labour force, compared to 77.2 pc of men. This stark disparity means that most wives are utterly dependent on their husbands, as they are often not allowed to study, develop employability, or work. Consequently, survivors of marital rape face immediate economic hardship should they dare to resist their husbands,” Kabir adds.
The ongoing debate over marital rape highlights the urgent need for legal reform and societal change in India. The government’s outdated stance perpetuates silence and suffering for many women.
Recognising consent as a fundamental right is crucial for progress, ensuring that laws reflect contemporary values of justice and equality. It is time for India to protect the autonomy and dignity of all individuals within marriage.