What are the arguments against the criminalization of marital rape?– that’s what I googled. The first result Google threw at me was from a right-wing portal. I won’t go into the fact that this is the worst source possible due to its bias and propaganda, but I do want to mention the first sentence I read from it. “Like all other civilized nations that have swallowed the ‘bitter pill’, India will also have to criminalize marital rape.” Calling it a ‘bitter pillone can infer the kind of politicized and propaganda-soaked arguments the article would make.
The issue of the criminalization of marital rape came to the fore again when the Supreme Court makes an important point while hearing the request of an unmarried woman seeking an abortion after the 20-24 week period.
According Live Act “On September 29, a bench headed by Judge DY Chandrachud in X v Principal Secretary, Department of Health and Family Welfare, NCT Government of Delhi, significantly concluded that the significance of rape must be considered as including “marital rape” for the purposes of the law and rules on medical termination of pregnancy.”
Essentially, the court bench said that every woman has the right to a legal and safe termination of pregnancy and that also includes marital rape.
A bench headed by Justice Ajay Rastogi said several petitions were pending before the supreme court and would be listed together for a hearing in February 2023. The Supreme Court on Friday September 16, 2022 requested a government response center on these calls.
The appeals follow a split decision by the Delhi High Court on whether to prosecute husbands for non-consensual sex with their wives. The petitioners were allowed to move the Supreme Court.
The law itself can find its roots in the unsubstantiated extrajudicial statement of the British jurist Sir Matthew Hale made in 1736 which says: “But the husband cannot be guilty of a rape committed by himself on his lawful wife, because by their mutual consent and matrimonial contract, the wife has delivered herself in this way to her husband, which she cannot retract..”
This is enshrined in Section 375 of the Indian Penal Code under exceptions. This law is 162 years old and reads:The sexual intercourse of a man with his own wife, the latter not being less than fifteen years old, does not constitute rape.“When you read it, it’s hard not to compare it with an amendment to the article that also defines rape as sex”With or without her consent when she is under sixteen”. Both from a societal and a moral point of view, the same act becomes permissible if the woman is over 15 and is bound by a marital contract.
This is the first contradiction in my opinion. This translated for me as if the woman gave up the right to protect her body when she married. The amendment also explains that penetration itself constitutes the sexual intercourse necessary for the offense of rape. However, when the victim is the wife, the abuser’s arguments revolve around the ambiguity of the context rather than the absence or withdrawal of consent.
Read also : Does marriage justify rape? : The split verdict of the Delhi High Court on the criminalization of marital rape
The two-judge bench of the Delhi High Court which handed down the shared verdict was led by Judge Rajiv Shakdar, who struck down the provision as unconstitutional the exception to Section 375. But the call to criminalize marital rape was rejected by Judge C. Hari Shankar, who was on the bench . He said any changes to the law should be taken up by lawmakers because social, cultural and legal concerns are imperative.
Reproducing the quotes from the verdict would have written the article on its own, but analyzing the statistics helps define the depth of the problem. Judge Shakhdar relied on the National Family Health Surveyto inform his verdict.
The survey indicates that the instigators of sexual violence are most often known to women in intimate relationships. The 2019-21 NFHS report show that “among single women aged 18-49 who have ever experienced sexual violence, 83% report their current husband and 13% report a former husband as perpetrators”.
UN Women (in 2018) valued that one in seven women had experienced physical or sexual violence from an intimate partner or husband. The International Gender Equality Survey driven by International Center for Research on Women noted that 1 in 5 men have forced their wife or partner to have sex with them.
Data also shows that 20% of Indian men admit to having forced their wife or partner to have sex. Data collected speak National Women’s Commission in India, further points out that domestic violence against women increased significantly during the lockdown in 2020, by 79% compared to 2019.
Since marital rape is not yet criminalized in India, there are no specific data. Currently, a victim can in theory seek redress under domestic violence criminal law.
Consent and Conflicting Opinions
An organization called Men’s Well-Being Trust opposed petitions calling for the criminalization of marital rape. According to one of their representatives,Sexual relations between husband and wife cannot be treated on the same footing as non-marital relations because the question of consent cannot be separated from the context of marriage.”
This is one of the most used arguments (falsely) again indicating that consent is perpetual in a marriage. In a similar vein, the Union Government in its submission to the Delhi High Court in January 2022 also stated that criminalizing rape would undermine the institution of marriage and make it easier for women to harass their husband.
In his verdict, Judge Shadkar noted that “the right to withdraw consent at any time is at the heart of a woman’s right to life and liberty, which encompasses her right to protect her physical and mental being”. Contrast that with Judge Shankar’s comments on the petition—“consent is given in the context of marital intimacy although the will to commit may be absent.”
He goes on to make statements that could further dilute victims’ claims with comments about visible injuries that could be used as evidence. Simply put, he meant that wounds can also indicate sexual release or BDSM, not necessarily lack of consent. Her statement on the requirement of a legislative course also highlighted another argument that the criminalization of marital rape can lead to the abuse of legal remedies and its impact on the dignity of the husband.
Arguments against exceptions under Article 375 of the ICC all fall under the notion of morality and social responsibility. The destruction of the family and the institution of marriage is a popular mistake. Sex within marriage is also treated as sacred in these arguments, and that would allow for an invasion of privacy. The absence of women from the two-judge bench of the Delhi High Court also speaks to how marital rape is viewed from the perspective of the husband rather than the wife in a heteronormative lens.
Read also : A critical look at the Indian government’s resistance to criminalizing marital rape
These social arguments assume that consent to marriage lasts for the duration of the relationship, that coerced sex is part of marriage, and that the institution is puritanical and should not be pushed by laws.
How is it that, when we have a landmark decision on the right to privacy (Supreme Court) that determines the right to privacy as a right that begins with one’s body and one’s decision-making autonomy, statistics proving that intimate partners often commit sexual violence, Article 14 of the Indian Constitution which protects people’s right to equality, and marital rape violates this right of a married woman, and the mention of forced sexual cohabitation as a violation of the fundamental right under article 21, that the arguments around marital rape are based solely on supposed sacrilege and the patriarchal understanding of consent?