The Times Australia
The Times World News

.
The Times Real Estate

.

It's still legal to rape your wife in India. That could be about to change

  • Written by Saptarshi Mandal, Associate law professor, O.P. Jindal Global University

In late February, a court in Delhi finished hearing a case[1] 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[2] since then, the husband’s immunity has been retained[3].

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[4] 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[5].

Read more: The shocking mythical tales that underlie attitudes to rape in India [6]

Why does the marital rape exception exist?

The original rationale for the exemption was derived from 17th and 18th-century English jurists[7]. 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.

Protesters hold a sign that says
The law was enacted was India was a British state, and still hasn’t been removed. Bikas Das/AAP

Similarly, English judge and politician, Sir William Blackstone argued[8] 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[9], where these ideas originated, and in Australia[10], 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[11] with the rights and freedoms guaranteed by the Indian constitution. Successive governments have avoided answering the question[12] 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.

Read more: How to tackle India's sexual violence epidemic – it starts with sex education[13]

Instead, it refuses to recognise marital rape, citing a range of factors[14] 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[15] 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[16] to criminalise marital rape[17] on the grounds it would weaken the sanctity of marriage. As an alternative, a parliamentary committee suggested[18] victim wives should opt for divorce[19] 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[20] whether a sexual encounter between a husband and wife was consensual, marital rape should not be recognised.

Protester holds a sign that says The Indian state has been against removing the law because they say it would interfere with families. Anupam Nath/AAP

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[21]”. 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[22] the hearing so it could consult the state governments on the issue.

Read more: Gang rape exposes caste violence in India and the limits of Me Too[23]

The government affirmed its commitment[24] 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[25].

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[26] of all criminal laws was being considered. This process begun during the COVID-19 pandemic and has been criticised[27] 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.

Read more: Gang rape exposes caste violence in India and the limits of Me Too[28]

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.

References

  1. ^ case (timesofindia.indiatimes.com)
  2. ^ several changes (www.hindustantimes.com)
  3. ^ retained (indiankanoon.org)
  4. ^ constitutional validity (timesofindia.indiatimes.com)
  5. ^ constitution of India (indiankanoon.org)
  6. ^ The shocking mythical tales that underlie attitudes to rape in India (theconversation.com)
  7. ^ 17th and 18th-century English jurists (lawlibrary.wm.edu)
  8. ^ argued (www.gutenberg.org)
  9. ^ England (www.law.cornell.edu)
  10. ^ Australia (www.law.cornell.edu)
  11. ^ compatibility (lawandotherthings.com)
  12. ^ have avoided answering the question (economictimes.indiatimes.com)
  13. ^ How to tackle India's sexual violence epidemic – it starts with sex education (theconversation.com)
  14. ^ range of factors (scroll.in)
  15. ^ reform (www.law.cornell.edu)
  16. ^ refused (www.academia.edu)
  17. ^ criminalise marital rape (www.ndtv.com)
  18. ^ suggested (164.100.47.5)
  19. ^ divorce (www.thequint.com)
  20. ^ what evidence could be used to prove (www.indiatoday.in)
  21. ^ moral and social awareness (www.thehindu.com)
  22. ^ defer (www.hindustantimes.com)
  23. ^ Gang rape exposes caste violence in India and the limits of Me Too (theconversation.com)
  24. ^ government affirmed its commitment (www.newindianexpress.com)
  25. ^ far-reaching social implications (www.news18.com)
  26. ^ comprehensive reform (www.thehindu.com)
  27. ^ criticised (www.theindiaforum.in)
  28. ^ Gang rape exposes caste violence in India and the limits of Me Too (theconversation.com)

Read more https://theconversation.com/its-still-legal-to-rape-your-wife-in-india-that-could-be-about-to-change-176797

The Times Features

48 Hours in Hobart: The Ultimate Weekend Itinerary

Nestled between the towering Mount Wellington and the sparkling waters of the Derwent River, Hobart is a charming city that offers an intriguing blend of natural beauty, rich histo...

Lunchtime Facelifts: Quick & Effective Procedures for Busy Professionals

Busy professionals often find themselves juggling demanding careers, family obligations, and social commitments. With such a tight schedule, it can be difficult to make time for ...

Visual Guide to Distinguishing Ants from Termites

Distinguishing ants from termites is crucial for homeowners who wish to protect their properties from structural damage. These tiny creatures, though seemingly unthreatening, can...

‘Active recovery’ after exercise is supposed to improve performance – but does it really work?

Imagine you have just finished a workout. Your legs are like jelly, your lungs are burning and you just want to collapse on the couch. But instead, you pick yourself up and ...

Plumber Rates In Canberra: What You Need To Know Before You Hire

When plumbing issues arise, most homeowners in Canberra have one major question: How much will a plumber cost? Whether it’s a leaking tap, a burst pipe, or a full bathroom renova...

Having an x-ray to diagnose knee arthritis might make you more likely to consider potentially unnecessary surgery

Osteoarthritis is a leading cause of chronic pain and disability, affecting more than two million Australians[1]. Routine x-rays aren’t recommended[2] to diagnose the condit...

Times Magazine

First Nations Writers Festival

The First Nations Writers Festival (FNWF) is back for its highly anticipated 2025 edition, continuing its mission to celebrate the voices, cultures and traditions of First Nations communities through literature, art and storytelling. Set to take ...

Improving Website Performance with a Cloud VPS

Websites represent the new mantra of success. One slow website may make escape for visitors along with income too. Therefore it's an extra offer to businesses seeking better performance with more scalability and, thus represents an added attracti...

Why You Should Choose Digital Printing for Your Next Project

In the rapidly evolving world of print media, digital printing has emerged as a cornerstone technology that revolutionises how businesses and creative professionals produce printed materials. Offering unparalleled flexibility, speed, and quality, d...

What to Look for When Booking an Event Space in Melbourne

Define your event needs early to streamline venue selection and ensure a good fit. Choose a well-located, accessible venue with good transport links and parking. Check for key amenities such as catering, AV equipment, and flexible seating. Pla...

How BIM Software is Transforming Architecture and Engineering

Building Information Modeling (BIM) software has become a cornerstone of modern architecture and engineering practices, revolutionizing how professionals design, collaborate, and execute projects. By enabling more efficient workflows and fostering ...

How 32-Inch Computer Monitors Can Increase Your Workflow

With the near-constant usage of technology around the world today, ergonomics have become crucial in business. Moving to 32 inch computer monitors is perhaps one of the best and most valuable improvements you can possibly implement. This-sized moni...

LayBy Shopping