It is still legal to rape your wife in India. This might be about to change

At the end of February, a court in Delhi completed the hearing of a Case on the right of married Indian women to sexual autonomy, and now a decision on the matter is expected.

The Indian Penal Code, enacted by the British colonial state in 1860, exempts forced sex between husband and wife from the definition of rape. This means that a man cannot be charged with rape if the victim is his wife. Although the rape provisions in the penal code have suffered several changes since then, the immunity of the husband is restrained.

In the present case, which began in 2015, two non-governmental organizations (the RIT Foundation and the Democratic Women’s Association of India) challenged the constitutional validity marital rape exemption. According to the petitioners, the distinction that India’s rape law makes between women based on their marital status is unreasonable and therefore in violation of the equality guaranteed by the constitution of india.

Read more: The shocking myths that underpin attitudes to rape in India

Why does the marital rape exception exist?

The original rationale for the exemption stemmed from 17th and 18th century English jurists. For Mathew Hale (Chief Justice of England between 1671 and 1676), consent to marriage itself implied consent to sexual relations, which once given could not be revoked.

The law was enacted when India was a British state and has still not been abolished.
Bikas Das/AAP

Likewise, English judge and politician, Sir William Blackstone argued that if husband and wife became a single legal entity at the time of marriage – as was the law at the time – then, logically speaking, the husband could not be charged with a crime against himself. In short, these jurists have emphasized the conceptual impossibility of marital rape.

In Englandwhere these ideas were born, and in Australia, where they traveled with colonialism, the exemption no longer exists. Courts in these countries held that the exemption had never been part of the common law (a body of unwritten laws based on judicial precedent) and that previous judges had been wrong in believing that it was.

Why does the Indian government oppose the criminalization of marital rape?

However, the question before the Indian court is not about the historical validity of the husband’s immunity, but about its compatibility with the rights and freedoms guaranteed by the Indian constitution. Successive governments avoided answering the question directly.

Contrary to the thesis of “the impossibility of marital rape” defended by English jurists, the attitude of the Indian State can be qualified as the thesis of “the inconvenience of marital rape”.

The Indian state does not invoke the theories of the wife’s tacit consent to have sex with the husband or the merging of her personality with that of the husband upon marriage. Nor does he deny that sexual violence takes place within marriage.

Read more: How to tackle India’s sexual violence epidemic – it starts with sex education

Instead, he refuses to acknowledge marital rape, citing a range of factors which, she says, pose practical difficulties in enforcing a criminal prohibition on non-consensual sex within marriage. In other words, the refusal to recognize marital rape is presented as a political decision that seeks to balance equally relevant competing considerations.

In 2013, India had a reform of its rape laws. And although they expanded the definition of rape in a number of ways, including acts other than penile-vaginal penetration, the government of the day refuse for criminalize marital rape on the grounds that it would weaken the sanctity of marriage. As an alternative, a parliamentary committee suggested female victims should opt for divorced or seek remedies for domestic violence.

In 2017, in its response to the NGO petition, the Bharatiya Janata Party (BJP)-led coalition government said that since it was unclear what evidence could be used to prove if a sexual relationship between husband and wife was consensual, marital rape should not be recognized.

The protester is holding a sign that says
The Indian state has opposed scrapping the law because it says it would interfere with families.
Anupam Nath/AAP

He went on to say that legally ending the immunity of the husband will not prevent the incidence of marital rape anyway, as the legal changes were unnecessary without “moral and social conscience”. Considering the differences between India and Western countries, due to its poverty, illiteracy and social diversity, validating non-consensual sex within marriage will not have the desired effect, argued the government.

The current position of the BJP-led government is no different. During the hearing which has just ended, he asked the court report the hearing so that he can consult with the state governments on the matter.

Read more: Gang rape exposes caste violence in India and limits of Me Too

the government has affirmed its commitment protect the rights and dignity of all women, but asked the court not to rule on the matter based solely on constitutional principles or legal arguments, given its profound social implications.

However, the judges refused to accede to this request and continued the hearing. Meanwhile, in response to a question about the government’s position on the matter, a minister told parliament comprehensive reform of all criminal laws was under consideration. This process began during the COVID-19 pandemic and was critical by lawyers, jurists and activists for its rushed and non-participatory nature.

Do married women have a legal right to their bodies?

The Indian state has never directly answered the question of whether Indian women lose their rights to bodily integrity and sexual autonomy upon marriage. Instead, he highlighted the downsides of recognizing and enforcing these rights.

Read more: Gang rape exposes caste violence in India and limits of Me Too

But the long list of drawbacks cited by the state over the years really aren’t about judges, prosecutors, or the police. Concerns about state intrusion into privacy, difficulties in proving rape, or potential misuse of the law are used to obscure the fact that the person who will be most inconvenienced if the rape exemption marriage is annulled is the husband.

We can only hope that the Delhi High Court, in its much-awaited judgment, will emphasize what it is really about – the husband’s undisputed claim to the wife’s body.

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