‘Husband Having Sex With Wife Against Her Wishes Not Illegal, Says Bombay High Court’ read a recent headline.
Shocked, I clicked open the article to make sure it wasn’t a typo. The court, in its ruling of a case where the man had non-consensual sex with his wife leaving her paralyzed, said that while it was “‘unfortunate” what happened to the woman, it wasn’t against the law.
Revolting as it may be, the court is not wrong. According to Section 375 of the Indian Penal Code, which deals with rape, forced sex in marriages is a crime only when the wife is below the age of 15 (which is deeply problematic in itself). If she is above 15, her husband can have non-consensual sex with her and not be punished for it, thus making it a legal act.
The law, however, is simply a product. The reason this law exists and why cases like these are still very common — The National Family Health Survey 2015-16 says that the average Indian woman is 17 times more likely to face sexual violence from her husband than from others — is the very patriarchal and regressive, socio-cultural set up that is India.
While the rape laws have come under scrutiny from time to time marital rape has always been conveniently left out of the conversation.
Women are seen as subservient, even today. Common conditioning dictates that a wife is someone who should always put her husband first, cater to his needs, and is, in general, a second-class citizen. Men, on the other hand who are considered on top of the food chain, are often taught that they have a right over women’s bodies, their spaces, and can get away without being held accountable, simply because they are men. Factor in the lack of sex education, understanding of consent and fundamental rights, and the oppression of women from marginalized communities, and existing, toxic power structures, and it’s not hard to see why India is unsafe for women.
The toxic structures also put the family unit on a pedestal and enable men to exert control over a woman’s agency. Any disruption (read: speaking up for personal liberty, demanding equal rights, and basic respect) to the sanctity of marriage is seen as taboo and a threat. So much so, that the government has previously defended not criminalizing marital rape by saying that it would threaten the “sacred institution of marriage.”
But what use is a marriage or a family, if all it leads to is further destruction of autonomy, liberties and fundamental human rights?
Rewind to a week prior to this particular ruling, when another ruling in a marital rape case also caused a stir, but of a different kind. In a historic ruling, the Kerala High Court earlier this month said that marital rape was good grounds for divorce. The court was hearing the case of a woman’s petition for divorce from her husband, who she alleged used her wealth and consistently abused her. In her petition, she stated that he not only took large sums of money from her, but also continuously forced her to have sex with him, even when she was sick and bedridden, and in front of their daughter. The court, in its ruling, said that treating a wife’s body as something that is owed to a husband, and committing a sexual act against her will is nothing but marital rape.
It continued: “Merely for the reason that the law does not recognize marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce.”
The stark contrast between the two rulings from courts of the same country, where in one woman gets some reprieve and the other, like in majority cases, gets none, illustrates the desperate need for a law criminalizing marital rape.
What use is a marriage or a family, if all it leads to is further destruction of autonomy, liberties and fundamental human rights?
Tragically, marital rape remains a contested topic of debate in India. While the rape laws have come under scrutiny from time to time and ignited fierce public debate, such as during the 2012 Delhi rape case, marital rape has always been conveniently left out of the conversation.
Rape is rape, whether in the context of a marriage or otherwise. But, in 2021, four years after the #MeToo movement, countless protests over rapes and assaults, innumerable debates between governments and lawmakers, a woman can be violated by a man, and not have any legal recourse just because of one archaic law. And that needs to change.