From Silence to Justice: The Fight Against Marital Rape in India

Marital rape is an issue that has been simmering beneath the surface for decades. It’s not just about the legality or illegality of the act, but about fundamental human rights and the integrity of women as autonomous individuals. In a country like India, where marriage is often seen as a sacred and unbreakable institution, this debate challenges deep-seated societal norms.

Historical Background: The Legal Framework and Cultural Roots

The exemption of marital rape from criminal prosecution has its roots in archaic beliefs, where wives were regarded as the property of their husbands. Under English common law, a wife was considered to have given permanent and irrevocable consent to sexual relations with her husband upon marriage. India, like many other former British colonies, inherited this legal outlook. Section 375 of the Indian Penal Code (IPC), which defines rape, contains an exception: sexual intercourse by a man with his wife, provided she is not under 18, is not considered rape.

This exemption exists despite the fact that marital rape was criminalized in over 100 countries globally. However, the belief in “perpetual consent” — the idea that marriage provides unconditional sexual access to a woman — continues to influence legal discourse in India.

Recent Developments: The Government’s Stand

The issue of marital rape in India came to the forefront when the Delhi High Court delivered a split verdict in 2022, with one judge in favor of striking down the marital rape exception. The case highlighted the gap in the law and the pressing need for reform.

For the first time, in a 2023 affidavit submitted to the Supreme Court, the Indian government acknowledged that marital rape “ought to be illegal and criminalized.” However, the government stopped short of calling non-consensual sex within marriage “rape,” arguing that the consequences of such actions within marriage differ from those outside it.

The Centre contended that labeling these acts as “rape” could destabilize marriages and lead to serious disruptions in the institution. According to the government, penal provisions under the Domestic Violence Act (2005) and other sections of the IPC (such as Sections 498A and 354) already offer remedies for women subjected to violence, including non-consensual sex. However, women’s rights advocates argue that these provisions fail to acknowledge the seriousness of the crime.

Humanizing the Debate: The Story of Countless Silent Voices

For countless women in India, marriage is often seen as a cage where they lose control over their bodies. Non-consensual sex is not just a violation of their dignity but also a complete erosion of their self-worth. The trauma of marital rape can be long-lasting, with emotional and psychological scars that often go unnoticed. Women suffer in silence, too scared to come forward because of societal stigma or fear of destabilizing their families.

This situation was poignantly captured in the words of Kavita Krishnan, a women’s rights activist, who said: “A woman does not lose her right to her body after she gets married. The marital rape exception reinforces the idea that women are the property of their husbands, with no say in matters of consent.”

Stories like that of Meera (name changed), a young woman from Karnataka, exemplify the suffering caused by marital rape. Forced into unwanted sexual encounters night after night, she suffered severe depression and suicidal thoughts. Despite her cries for help, her family dismissed her complaints, citing her “wifely duties.” Meera’s story is not an isolated one — it is the reality for many women trapped in abusive marriages across the country.

Why Marital Rape Must Be Criminalized: The Core Issues

Violation of Bodily Autonomy: Marital rape is not just about sex — it is about control. A woman’s right to her body should not be contingent on her marital status. Criminalizing marital rape would restore the autonomy of women, affirming that marriage does not give a man the right to violate his wife’s consent.
Erosion of Dignity and Equality: Treating marital rape differently from other forms of rape creates a legal hierarchy that devalues women based on their relationship status. Article 14 of the Indian Constitution guarantees the right to equality, and applying different standards of legal protection based on marriage is a gross violation of this principle.
Psychological and Emotional Trauma: Studies have shown that women who experience marital rape are more likely to suffer from depression, anxiety, and PTSD. The fear of speaking out, combined with the lack of legal recourse, forces them to endure unimaginable pain.
Public Health and Safety: Marital rape can lead to long-term health issues for women, including sexually transmitted infections and unwanted pregnancies. The inability to negotiate safe sex in a marriage exacerbates health risks and denies women their right to a safe and healthy life.
Reinforcement of Patriarchal Norms: The exemption of marital rape reinforces the patriarchal belief that men have a right over their wives’ bodies. This mindset is detrimental to society, as it perpetuates inequality and injustice. Criminalizing marital rape would be a step toward dismantling this harmful ideology.

The Opposition: Arguments for Retaining the Exception

Despite the compelling arguments for criminalizing marital rape, there are strong voices opposing this move. The government, in its affidavit, emphasized that marriage is not merely a private institution but one that carries significant social and public importance. According to the government, criminalizing marital rape could “unsettle the delicate balance” in marriages and lead to a breakdown of the institution itself.

Many opponents also argue that the criminalization of marital rape could lead to false accusations. However, women’s rights activists counter that this argument should not be a reason to deny justice to genuine victims. A balanced legal framework with safeguards against misuse can be developed, as is the case with other crimes.

Looking Ahead: What’s at Stake?

The debate over marital rape in India is far from over, but the stakes are high. The future of gender equality and women’s rights hinges on the outcome of this debate. Criminalizing marital rape would not only provide justice to millions of women but also send a strong message that consent matters — in every situation, regardless of marital status.

The Supreme Court’s upcoming ruling on this issue could have far-reaching implications. A progressive judgment would align India with global standards on gender justice and reaffirm its commitment to the rights and dignity of women. Conversely, upholding the marital rape exception would signal a continued tolerance for patriarchal values that subjugate women.

In the words of Justice Rajiv Shakdher, who supported striking down the marital rape exception: “Rape is rape, be it performed by a man, the husband, on a woman, the wife.” The time has come for India to recognize this truth and ensure that all women, regardless of their marital status, are entitled to protection under the law.

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Author

Rishabh Rawal
Rishabh Raval is an expert in economics and political matters. He has taught these subjects at various prestigious institutions across India. Rishabh has also appeared for the UPSC interview, showcasing his deep understanding of these fields. Currently, he contributes his knowledge and insights as an editor and author at The Philox.
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