Payal takes a hard look at the issue of marital rape, its criminalisation and the argument that it would destabilise the institution of marriage. India should learn from other nations, she reasons, in the weekly column, exclusively in Different Truths.

Chief Justice Sir Matthew Hale in The History of the Pleas of the Crown stated in the 17th century, “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.”

This ‘Implied Consent Theory of Sir Hale’ formulated in the seventeenth century, forms the basis for our legal system that does not recognise marital rape as a crime even in the 21st century.

One would consider, that there should be no debate whether a human being is allowed control over their body and mind. Everybody should have the freedom to decide what is allowable and what is not in the context of their physical selves. Seems like a basic tenet of humanity, something that defines you as a human being, right? Apparently not.

Our legal system has not allowed ‘marital rape’ to be recognised as a crime. It is easy to understand this, because no man really can understand what it is like to be violated physically, without permission. It seems, that for a married woman, her body belongs to her husband to do with as he will.

Very recently, the movie, Lipstick under my Burqa, showed us the ugly face of marriage. If you have seen the movie, you will have no doubt that it is rape, and nothing else. Yet, many would contend that:

1. A husband has the right to seek sexual satisfaction from his wife.

Of course, the converse has no standing, as sexual satisfaction for a woman is beyond the understanding of a large part of the male population, especially in patriarchal strongholds of which India is one. Moreover, this sexual violation has religious sanction, in that women are supposed to obey and please their husband.

2. A woman’s emotions, thoughts, and feelings are not enough of a reason to desist. In this case, a no does not mean a ‘NO’. In fact, no one is even bothering to ask her if she wants to have sex.

On the one hand, the Supreme Court submits: “Patriarchal notions still prevail in several societies including our own and are used as a shield to violate core constitutional rights of women based on gender and autonomy. As a result, gender violence is often treated as a matter of ‘family honour’, resulting in the victim of violence suffering twice over — the physical and mental trauma of her dignity being violated and the perception that it has caused an affront to ‘honour’. Privacy must not be utilised as a cover to conceal and assert patriarchal mindsets.”  Nine judges of the Supreme Court assembled to determine whether privacy is a constitutionally protected value and brought up the issue of “the autonomy of a woman and, as an integral part, her control over the body” quite a few times.

But before you begin to celebrate, citing misuse of Section 498A of IPC, the Centre has submitted before the Delhi High Court that criminalising marital rape, as sought by some petitioners, may destabilise the institution of marriage apart from being an easy tool for harassing the husband. “If all sexual acts by a man with his own wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife. The question is what evidences the Courts will rely upon in such circumstances.”

The Centre believes, that marital rape if criminalised would lead to the destabilisation of marriage. With this stand, there is so much of a dichotomy. It cannot be denied that any sexual act, without a woman’s free and unthreatened consent, constitutes rape, except, in the case of a married woman, where the presumption that is being made is that a woman’s consent is a precluded supposition and she has no right to refuse. To put it another way, marriage takes away a woman’s right to say no, and to choose when or even if they want to have sex.

Because of this very dichotomy, the court has allowed several intervention pleas. One is by a group Forum for the Engagement of Men (FEM), which is supporting the petitions seeking criminalisation of marital rape. The court has allowed the intervention application by FEM and made it a party to the petitions seeking a declaration of Section 375 (offense of rape) of the IPC as unconstitutional on the ground that it discriminates against married women being sexually assaulted by their husbands.

“Marriage is a partnership between equals. However, men have historically assumed ‘privileges’ including the privilege of having sex at their instance. Most women have been conditioned to accept that.” The patriarchal nature of our society assumes compliance and thus leaves no room for a woman to even consider refusing sex.

The International Men and Gender Equality Survey (IMAGES) conducts comprehensive surveys on a wide variety of topics related to gender equality.

Reporting on intimate partner violence, 40% women reported violence from a spouse. Sixty percent has experienced sexual and physical coercion in the first 2 years of marriage. Twenty percent of men surveyed admitted to sexual violence. 

“If a man rapes a woman, it’s a crime. If a man marries a woman and rapes [her], he’s exempted, it’s legally acceptable,” said Colin Gonlaves, advocate for marital rape survivor Saifi.

“It’s criminal to beat your wife, it’s criminal to kill your wife, but if you rape your wife, that is legal,” says Karuna Nundy.

In 1976, Australia made rape within marriage a crime. South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana, and Israel all removed Marital Immunity for rape. In the USA, by 1993, all 50 states made marital rape a crime.  In 1986, the European Parliament’s Resolution on Violence against Women of 1986 called for criminalisation of spousal rape, which was done soon after by several nations including France, Germany, the Netherlands, Belgium, and Luxembourg. In 1991, The United Kingdom did away with its common law principle that a marriage contract implied a woman’s consent to all sexual activity.

Our neighboring country Nepal, which struggles with the same mindset as India, took a stand in 2002 – the Nepal Supreme Court stated that it went against the constitutional right of equal protection and the right to privacy. It said, “The classification of the law that an act committed against an unmarried girl to become an offense and the same act committed against a married woman not to become an offense is not a reasonable classification.”

As for misuse – show me one law that cannot be subverted or misused?

It calls for a huge change in society and privilege for men to understand that a woman’s rights do not change with marriage. She belongs only to herself and should have full autonomy over her body. I cannot think of a plea more puerile than ‘this will destabilise marriage’. Is the onus of marriage dependent on a woman’s silent acceptance of rape?

Moreover, does it not destabilise society to have allowed a woman to suffer sexual violence without any recourse to law? Any system that becomes a way to subjugate and oppress a human being needs to get ‘destabilised’. Only then will a stronger and better, more equitable idea of marriage emerge.

 ©Payal Talreja

 Photos sourced by the author from the Internet

#MaritialRape #Criminalisation #RapeInMarriage #InternationalMenAndGenderEqualitySurvey #SupremeCourt #LipstickUnderMyBurqa #HistoryOfPleas #FeministAtFifty #DifferentTruths

Payal Talreja

Businesswoman, curator of handlooms, poet, writer, and erstwhile doctor. Payal Talreja practices everything except her involuntary ‘profession’. She claims that words chose her and are now her weapon of choice because an activist born will stay silent for no man. A wanderer, a voyager, she’s happy to slum it or luxuriate in any life experience. She crafts poems and fiercely feminist essays and will assume her ‘Chandi’ avatar to ‘write’ any wrong.

See Full Bio