A Legal Right To Rape

15/03/2015 8:19 AM IST | Updated 15/07/2016 8:25 AM IST
Photographed by Victoria Phipps © via Getty Images

The Supreme Court of India recently dismissed a plea by a woman to declare marital rape a criminal offence. The petitioner, a Delhi-based executive, alleged that she was repeatedly subjected to sexual violence by her husband, including having torch lights pushed into her. Sadly, she has no legal recourse: according to Section 375 of the Indian Penal Code, sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not sexual assault, even if it is without consent.

"These laws persist in India because our lawmakers, a majority of whom are men, are still steeped in patriarchal notions of family, honour and women-as-chattel."

Marriage Certificate = Right to Sexual Assault?

It is possible that the SC dismissed the plea on technical grounds: "You are espousing a personal cause and not a public cause...This is an individual case", it said. But other attempts to seek legal recourse against marital sexual assault have not been successful. Nine months ago, a trial court in Delhi refused to consider forcible sexual intercourse between married partners an offence, even though the petitioner claimed that she had been forced into marriage. Unable to verify the authenticity of her claims that she had been abducted and forced to sign a marriage certificate, the judge went by the enlightened guidelines of Section 375 -- that it was all right for her legally wedded husband to do as he pleases with her.

The prosecutrix and accused being legally wedded husband and wife, the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused.

So once a woman is married and is above 15 years of age, she loses to the right to consent in sexual relations. This despite a recent UN Study confirming the prevalence of sexual violence in Indian marriages. How is this not a gross violation of our fundamental right to life, equality and against exploitation?

A Wife's Duty

But why blame Section 375 alone? The Hindu Marriage Act of 1955 compels a wife to have sex with her husband, and a husband can easily seek divorce on grounds of cruelty if he can convince the court that his wife refused him sexual intercourse. A Delhi High Court judgement upheld the divorce granted to a man by a trial court because:

The refusal of the appellant wife to participate in the "Dud Mundari ceremony" and thereafter "Chudha ceremony", which were customary rituals in the family of the respondent husband caused embarrassment and humiliation to the respondent and such acts on the part of the appellant amounted to cruelty.


In the span of one year and two months of the married life, the parties had sex only for about 10-15 times and also denial of the appellant for sexual relationship on the very first night of the marriage is a grave act of cruelty as healthy sexual relationship is one of the basic ingredients of a happy marriage.

So a wife's dharma is to provide sex to her husband, as frequently as he demands. Has a woman sought divorce on the grounds of inadequate sexual intercourse? That's unlikely -- the only conditions under which a wife is granted divorce on sexual grounds is if she presents compelling evidence to establish her husband's impotence.

Child Marriages

A further dichotomy is that while the legal age for marriage in India is 18 years for women, India has the second highest number of child marriages in the world. It is widely known that the child brides--some as young as 12--have little agency in these marriages. Since child marriages are linked to education and income levels, it is highly likely that a majority of the child brides would not have registered birth certificates, making it difficult to prove their age. By legalising marital rape, we also seem to be legalising sexual assault of children under the aegis of marriage.

The Indian Family System

The truth is that these laws persist in India because our lawmakers, a majority of whom are men, are still steeped in patriarchal notions of family, honour and women-as-chattel. The Justice Verma Committee (JVC) that was set up to re-examine laws related to crimes against women rightly recommended in 2013 that marriage should not be considered as an irrevocable consent to sexual acts:

exemption for marital rape stems from a long outdated notion of marriage which regarded wives as no more than the property of their husbands... whereas marriage is in modern times regarded as a partnership of equals.

How did our lawmakers respond to this? A Home Ministry Standing Committee invoked our beloved "family system" in rejecting the JVC's recommendation to criminalize marital rape:

... several Members felt that the marital rape has the potential of destroying the institution of marriage. The Committee felt that if a woman is aggrieved by the acts of her husband, there are other means of approaching the court. In India, for ages, the family system has evolved and it is moving forward. Family is able to resolve the problems and there is also a provision under the law for cruelty against women. It was, therefore, felt that if the marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice.

Incidentally, how many women did this Committee have? Three out of 29.

This map on Wikimedia shows how India compares with the rest of the world on the legal treatment of marital rape (Hint: We're not exactly progressive). No wonder that this widely shared article dissed our marital rape regulations as amongst the most sexist, and dangerous, from around the world.

Do read the entire Delhi HC judgement and the observations of the Home Ministry Standing Committee to understand what we are up against.

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