Insinuation of Marital rape

The clutch of Public Interest Litigation petitions (PILs) filed afresh seeking the Centre’s support for criminalisation of marital rape are merely an insinuation. Perhaps the litigants in their quest for freedom, autonomy, liberty, equality, and individual rights of women, do not recognise the holistic view of a family as a unit. In Bharat i.e. India people of all communities have a shared culture and a shared value is treating family as an entity. The Union Home Ministry, while replying to the petitions, in an affidavit stated, “Given the nature of the marital institution in our socio-legal milieu, the legislature is of the view that, for preservation of the marital institution, the impugned exception (the exception of marital rape) should be retained.” The Centre also clarified that it is committed to “fully and meaningfully” protecting the liberty, dignity, and rights of every woman.

The proponents of the criminalisation of marital rape ask: how can the Govt. of India, in its affidavit, fully repose faith in the institution of marriage? This question leads to two divergent thought processes in the country. It opposes the traditional conservative thought to its radical alteration, i.e. modernisation. According to the modern way of thinking, India would only become a second or fifth edition of Europe or America. Of course, it already happened to a certain extent due to the liberalisation of the economy and market forces. Nevertheless, India is different in many ways from the West. Though the country is modernising, India’s institution of marriage is religiously and juridically intact. This can be said emphatically, as the divorce rate is at one percent in India compared to the very high proportion of divorces in western countries. Historically, India has a strong family-system. Sir William Wedderburn (1838-1918), the great friend of the Indian National movement and the voice for colonial India’s concerns in the British House of Commons applauded India’s family system and domestic social virtues. I. Young Secretary of the Sassoon Mechanics’ Institutes around the same period, passionately writes, ‘Many Indian households afford examples of the married state in its highest degree of perfection. This may be due to the teachings of Shastras, and to the strict injunctions which they inculcate with regard to marital obligations; but it is no exaggeration to say that husbands are generally devotedly attached to their wives, and in many instances, the latter have the most exalted conceptions of their duties towards their husbands.’

In a similar vein, another renowned missionary of that time, the Abbot J.A. Dubois, pointing out the difference between the Indian and European societies writes, “The authority of (Indian) married women within their houses is chiefly exerted in preserving good order and peace among the persons who compose their families, and great many among them discharge their important duty with prudence and discretion, which have scarcely a parallel in Europe.” To some, this may seem like a one-sided picture. Understandably, there are hapless women who silently suffer. They need equality and empathy. For them, the Indian parliament has provided remedies, including criminal law provisions to protect consent within marriage (under the IPC there are many sections for it). The protection of women afforded by the Domestic Violence Act, 2005 also ensures serious penal consequences for such violations. Hence, the government agreed to anything short of criminalisation of marital rape. It refused this provision on the ground that it would weaken the sanctity of marriage, arguing that the consequences of such violations (the said rape) within marriage differ from those outside it (outside the marriage). In any case, if there are any such victim-wives, they could opt for divorce or seek protection under domestic violence laws.

No matter what the petitioners contend, legal punishment may not end or prevent marital rape. Moral and social awareness may change the attitudes in society. There are many laws on dowry, domestic violence, and other such forms of harassment against women, but they are confined to statute books. The women, generally, object to having criminal cases filed against their husbands because criminalising and sending them to jail or punishing them with coercive police actions would be harmful to their family. For most women in India, it is still the husband who earns money for the family. Policing them or keeping them in jail stigmatises the entire family. There is a huge gap between Indian and western households. In India, there is sanctity attached to marriage rather than no-hold barred freedom, autonomy, and individual rights for women. However, within the framework of marriage, there is a lot of freedom for women, sometimes it makes them rule over their husbands.  

The Indian Penal Code, enacted by the British colonial state in 1860, exempts marital rape from prosecution. However, European countries, the U.K. and Australia have changed their positions now to make marital rape criminal. The Indian position differs. Because of the prevailing conditions of poverty, illiteracy, and social diversity, marital rape cannot be validated and will not have the desired impact. Nevertheless, since marital rape relates to marriage, it comes under the Concurrent List of the states and the Centre. When views of States and Union Territories were sought, most of the states supported the exception for marital rape under Section 375 of the IPC. According to the Government. of India, marital rape is more of a social issue than a legal one, but for the litigants in the case, it is about the equality between sexes enshrined in the Constitution. They argue that many countries around the world that have strict laws against marital rape. Therefore, they compare India with Afghanistan. This comparison is bizarre and even absurd given that in Indian law there are no mandatory religious prescriptions. The government is right in arguing that ‘Considering the social impact involved … taking a decision merely based upon the arguments of the PIL petitioners may not serve the ends of justice’. Moreover, the state cannot intrude into private life beyond a point. It is difficult to prove rape, and therefore there is potential misuse of the law if one-sided allegations are sufficient to motivate prosecution.