Criminal logo

I Do DOES NOT mean I Consent

by Varsha Elizabeth Geegy 9 months ago in fact or fiction
Report Story

LIBERTY International - Issue No. 6

In India, a society deeply rooted in patriarchy, it is not a crime for a man to rape his wife!

While campaigners argue time and time against an archaic law that has no place in a modern society, the government has consistently maintained that criminalising marital law could "destabilise" the institution of marriage and that it could be used by women to harass men (Pandey, 2021). Marital rape occurs when the husband believes that he owns his wife's body. Such notion has no place in modern social jurisprudence, yet they still form a fundamental part of it in India.

All property, succession and economic rights in India reflect the same view as in marriage, that a woman is the ‘property’ of men, her father before marriage and that of her husband after marriage. Section 375 of the Indian Penal Code (IPC) provides the statutory definition of rape, along with the exception clause which states, “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” The idea is rooted in the belief that consent for sex is implied in marriage and that a wife cannot retract it later.

Indian rape law is discriminatory and patriarchal as it believes that a woman is bound to have sex with her husband during the course of the marriage; even when forced it is not a crime. One would assume that the British colonial-era legislation from 1860 is merely a reflection of the time it was enforced; that modern society opts an interpretational approach to applying the legislation instead of rigidly adhering to the literal wording (Dripps, 1992). However, it was merely days ago that Justice NK Chandravanshi of the Chhattisgarh High Court ruled that "sexual intercourse or any sexual act by a husband with his wife cannot be rape even if it was by force or against her wish".

The woman had accused her husband of "unnatural sex" and raping her with objects. Justice Chandravanshi stated that the man could be tried for unnatural sex but cleared him of rape since Indian law does not recognise marital rape. The ruling sparked outrage on social media and the judiciary, with the majority of the people calling for a radical reformation of the outdated rape law.

The judiciary appears to be torn on this subject matter, with ruling contradicting one another from state to state. Justices A Muhamed Mustaque and Kauser Edappagath of Kerala High Court established in their 6th August ruling that although such conduct cannot be penalised, the husband's licentious disposition disregarding the autonomy of the wife is marital rape and falls within the frame of physical and mental cruelty. They further ruled that marital rape was a good ground to seek divorce.

Yet, the few voices of those who argued the contrary sullied the campaigns minutely. One suggested "there must be something wrong with her character"; meanwhile another wondered "what sort of a wife would complain of marital rape?"; while a one said that "only a wife who doesn't understand her duties would make such a claim".

Gender researcher Ms Kota Neelima boldly summarises the state of the Indian rape law, "India has a facade of being very modern, but scratch the surface and you see the real face. The woman remains the property of her husband. Rape is criminalised in India not because a woman's violated, but because she's the property of another man."

Marital rape has increasingly been challenged across the world over the years, more than 100 countries have outlawed marital rape. Britain outlawed it in 1991 stating that implied consent could not be seriously maintained nowadays. Over the years, In India, some progresses have been made in addressing domestic violence against women and sexual harassment, but the issue of marital rape remains unresolved.

Despite countless campaigns to criminalise it, India remains among 36 countries where marital rape is still legal. According to a government survey, 31% of married women have faced physical, sexual and emotional violence from their husbands. As per the National Health and Family Survey (NFHS-4) from 2016, 5.6% of the women who participated were found to be sufferers of physically coerced sexual intercourse (Business Standard, 2018).

Cases

Mat. Appeal No. 151 of 2015.

R v R (1991).

Legislation

Indian penal Code (1860).

Bibliography

Business Standard. (Oct., 2018). [online] Available at: <Retrieved from https://www.business-standard.com/article/current-affairs/why-criminalisation-of-marital-rape-is-still-a-distant-dream-in-india-118102900084_1.html> [Accessed 5 September 2021].

Dripps, D. A. (Nov., 1992). Beyond Rape: An Essay on the Difference between the Presence of Force and the Absence of Consent. Columbia Law Review Association, Inc., 1780-1809.

Pandey, G., 2021. In India, growing clamour to criminalise rape within marriage. BBC, [online] Available at: <https://www.bbc.co.uk/news/world-asia-india-58358795> [Accessed 5 September 2021].

fact or fiction

About the author

Varsha Elizabeth Geegy

Criminal Defence Lawyer 👩🏻‍⚖️

Aspiring Author 📖 ✍️

Human Rights Advocate

Creator of LIBERTY International Ltd ⚖️

Reader insights

Be the first to share your insights about this piece.

How does it work?

Add your insights

Comments

There are no comments for this story

Be the first to respond and start the conversation.

Sign in to comment

    Find us on social media

    Miscellaneous links

    • Explore
    • Contact
    • Privacy Policy
    • Terms of Use
    • Support

    © 2022 Creatd, Inc. All Rights Reserved.