Criminalizing marital rape would be \u201cexcessively harsh,\u201d the Indian government has said, in a blow to campaigners ahead of a long-awaited Supreme Court decision that will affect hundreds of millions of people in India for generations. <\/p>\n
In India, it is not considered rape if a man forces sex or sexual acts on his wife, as long as she is over 18, due to an exception in a British colonial-era law. <\/p>\n
Most Western and common law jurisdictions have long since rectified this \u2013 Britain outlawed marital rape in 1991, for example, and it is illegal in all 50 US states. <\/p>\n
But across the world, about 40 countries do not have legislation that addresses the issue of marital rape \u2013 and among those that do, the penalties for non-consensual sex within marriage are \u201csignificantly lower\u201d than other rape cases, according to the United Nations Population Fund\u2019s 2021 State of World Population review. <\/p>\n
Campaigners in India have long fought against the clause, with the country\u2019s top court currently hearing petitions seeking to amend it, after the Delhi High Court delivered a split verdict on the issue in 2022. <\/p>\n
In its formal opposition to those petitions, the government\u2019s Ministry of Home Affairs argued a man should face \u201cpenal consequences\u201d for forcing himself on his wife. But punishing it as rape would \u201cseverely impact the conjugal relationship\u201d and \u201chave a far-reaching effect on the institution of marriage.\u201d <\/p>\n
Classifying marital rape as a crime, \u201ccan be arguably considered to be excessively harsh and therefore, disproportionate,\u201d the government said. <\/p>\n
The government\u2019s written affidavit is its clearest position yet on the issue of marital rape in India. <\/p>\n
Advocates for criminalization said the government\u2019s arguments were not surprising, but it represents a \u201cstep back\u201d for women already living in a deeply patriarchal society where sexual violence is rampant. <\/p>\n
\u201cIt speaks to India\u2019s acceptance of sexual violence in our culture,\u201d said Ntasha Bhardwaj, a criminal justice and gender scholar. \u201cWe\u2019ve normalized that sexual violence is a part of being a woman in our country.\u201d <\/p>\n
In July, Prime Minister Narendra Modi\u2019s government overhauled the country\u2019s 164-year-old penal code with new criminal laws, but the exemption for marital rape stayed on the books. <\/p>\n
India has struggled for years to tackle high rates of violence against women, with a number of high-profile rape cases sparking nationwide anger and drawing international headlines. <\/p>\n
The government\u2019s formal opposition to the marital rape criminalization campaign comes two months after the rape and murder of a trainee doctor in the West Bengal city of Kolkata sparked mass outrage and protests in the country, with hundreds of thousands of doctors striking to demand better protection for health workers. <\/p>\n
In its argument against criminalization, the Indian government said that a woman\u2019s consent is protected in marriage, but there is \u201ca continuing expectation, by either of the spouse, to have reasonable sexual access from the other.\u201d <\/p>\n
It added that, \u201cthough these expectations do not entitle the husband to coerce or force his wife into sex\u2026 the consequences of such violations within marriage differ from those outside of it.\u201d <\/p>\n
The government also claimed existing laws on sexual and domestic violence were sufficient to \u201cprotect consent within marriage.\u201d <\/p>\n
Mariam Dhawale, General Secretary of the All India Democratic Women\u2019s Association \u2013 one of the petitioners fighting for criminalization \u2013 said consent inside and outside of marriage are \u201cnot two different things.\u201d <\/p>\n
\u201cConsent is consent,\u201d she said. \u201cIn our country, a woman is not thought of as an independent human being, as an independent citizen of the country. She is like, sort of an appendage to the husband. She\u2019s subordinate, she\u2019s not a separate identity as such.\u201d <\/p>\n
Dhawale said marital rape is a big part of the violence reported by women who seek help from her organization, but they often avoid coming out in the open with their allegations. <\/p>\n
\u201cBecause they know that nobody will believe them, and it\u2019s not considered as a crime,\u201d she said. <\/p>\n
Shifting that belief will take more than changing a law, but it\u2019s the \u201cfirst step,\u201d said Bharadwaj. <\/p>\n
\u201cIt\u2019s a cultural revolution underneath,\u201d she said. \u201cUntil and unless you make a big statement that this is not okay, the culture will never shift, because by not having that law, the culture is accepting of that violence.\u201d <\/p>\n
Women alleging rape in India have some avenues of potential legal action against their husbands, but advocates for criminalization say the current laws don\u2019t go far enough. <\/p>\n
Women can seek a restraining order under civil law or charges under Section 354 of India\u2019s Penal Code, which covers sexual assault short of rape, and Section 498A, which is intended to punish cruelty toward women specifically in the context of dowry, and India\u2019s Domestic Violence Act. <\/p>\n
But the laws are open to interpretation and women face hurdles even when even trying to file initial police complaints, according to recent studies. <\/p>\n
In May, a judge in Madhya Pradesh dismissed a woman\u2019s complaint that her husband committed \u201cunnatural sex\u201d by citing the country\u2019s marital rape exemption and saying in his judgement that in such instances, \u201cconsent of the wife becomes immaterial.\u201d <\/p>\n
AIDWA\u2019s Dhawale said women often remain trapped in abusive households with no recourse or way out, especially if she is financially reliant on her husband. <\/p>\n
\u201cWe don\u2019t have any kind of safe places, shelter homes, institutions. So she has to remain in the four walls of that place. She cannot complain, because if she complains, she has no place to go\u2026 nobody will stand by her, unless and until it\u2019s recognized as a crime.\u201d <\/p>\n
India\u2019s Supreme Court increased marital consent from the age of 15 to 18 in a landmark judgement in 2017. <\/p>\n
\u201cThe Supreme Court debunked that argument,\u201d she said. <\/p>\n
Now, recognizing marital rape, Kothari said, \u201cis a crucial way in which women\u2019s equality within the marriage is going to really be bolstered.\u201d <\/p>\n
Similarly, Dhawale said \u201cthe sanctity of marriage, or the harmony within the home is actually getting disturbed by the man who is committing the violence, not by the woman who is asking for justice.\u201d <\/p>\n
A major concern of the government and of men\u2019s rights groups is that a marital rape law will lead to women falsely accusing their husbands of rape. <\/p>\n
Kothari said that already, it\u2019s extremely hard for women to report sexual violence, even when the laws support them. <\/p>\n
\u201cAll the claims of domestic violence being misused, it\u2019s largely untrue, because it takes an immense amount of effort for women to come out and report it,\u201d she said. <\/p>\n
\u201cIt\u2019s not like floodgates are going to be opened with hundreds of marital rape cases [being reported]. It\u2019s still going to be very difficult.\u201d <\/p>\n<\/p>\n
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