Why it is time for India to join 150 countries in criminalising marital rape
The Karnataka High Court ruled that denial of sex is a violation of sections of the Hindu Marriage Act and thus grounds for divorce.
The Kerala High Court issued a landmark decision earlier this week, declaring marital rape to be a valid ground for divorce.
In the case at hand, where the appellant coerced his sick wife into having sexual relations with him, the Division Bench of Justice Kauser Edappagath and Justice A Muhamed Mustaqueruled that "husband's licentious disposition disregarding wife's autonomy is marital rape." While marital rape is not punishable in India, the court will recognise it as an act of cruelty and grant a divorce if it is recognised as such.
They also believe that the law should evolve in such a way that human problems are dealt with in a humane manner.
Acts of penetration without informed consent are classified as rape under Section 375 of the Indian Penal Code (IPC). It does, however, state unequivocally that sexual intercourse with one's wife over the age of 15 does not constitute rape. The Criminal Amendment Act of 2013 increased the statutory age of consent from 15 to 18.
Furthermore, in Independent Thought v. Union of India, the Supreme Court, while refusing to rule on the legality of marital rape, held that a girl child under the age of eighteen, regardless of her marital status, is incapable of consenting to sexual intercourse.
The issue of marital rape is not new in the Indian context, and no discussion of it would be complete without mentioning the Phulmani case from Bengal.
In 1889, a 35-year-old husband raped his 11-year-old wife, killing her. Following that, the former British government passed the second Age of Consent legislation, raising the consent age from 10 to 12. This move offended many sections of society and drew criticism from prominent leaders such as Bal Gangadhar Tilak, who argued that the British were interfering unnecessarily with Hindu customs and religion.
The Bengali orthodox Hindus insisted that a girl reaches sexual maturity by the age of ten, and that this act violates the sanctity of Hindu marriage. Matrimony has always been regarded as a sacred institution, and attempting to make even minor rational changes to it elicits considerable hostility from the public, which may explain why the government has remained aloof from personal laws to this day.
As a result, male dominance in marriage and non-interference of the third party in a matrimonial dispute remains the norm even two centuries after Phulmani.
The National Family Health Survey discovered in 2005-06 that 93 percent of the 80,000 women polled had been sexually abused by their current or former husbands.
The 2015-16 National Family Health Survey found no improvement, with data estimating that 99.1 percent of sexual assault cases go unreported. According to National Crime Records Bureau statistics, less than one percent of such incidents were reported.
The Verma Committee, formed in the aftermath of the Jyoti Singh (Nirbhaya) case to strengthen sexual assault laws, concluded that the victim-offender relationship is irrelevant and that the focus should be solely on the presence of consent.
Kanimozhii, a Rajya Sabha member, asked the government on the floor of the Rajya Sabha in 2016 whether they planned to end the exception granted to married men under Section 375 of the IPC. Haribhai Parathibhai Chaudhary, Minister of State for Home Affairs, responded that the government has no such plans because it values the sacred institution of marriage. Poverty, illiteracy, and current social customs were also cited by the minister as reasons for continuing with the exception.
According to the panel formed to review the Verma Committee's recommendations, criminalising marital rape would put the entire family "under stress" and could potentially destroy the institution of marriage. However, some argue that rape has the potential to destroy the institution of marriage.
Furthermore, when discussing criminalization, concerns about misuse frequently arise. Vrinda Grover, a human rights advocate, responds by saying that the difficulty in proving the commission of the offence or its possible misuse should not prevent victims from seeking legal redress.
Penalizing marital rape necessitates changes to the Hindu Marriage Act. Denying sex, according to Hindu beliefs, contradicts the tenets of an ideal Hindu wife. It has also been observed that denial of sexual intercourse is a common reason for divorce. The Karnataka High Court ruled that denial of sex is a violation of sections of the Hindu Marriage Act and thus grounds for divorce.
"The husband cannot be made to suffer for no fault of his and be deprived of his natural urge to enjoy sexual happiness if the wife refuses to share the bed and discharge her duties," the court said. When the shadow of patriarchy weighs so heavily on our belief system, it becomes even more difficult for women to fight for their rights, even those as basic as bodily autonomy.
In his History of Pleas of the Crown, Justice Hale (1736) stated, "Husband cannot be guilty of rape committed by himself upon his lawful wife." He reasoned that once a couple is legally married by mutual consent, the wife is presumed to have consented to sexual intercourse with her husband for the duration of the marriage.
Marriage is viewed by the courts as a contract that requires the wives to engage in sexual intercourse, a contract that they cannot break. The "duty" of sex is distributed equally by law, but it is obvious that it works to men's advantage.
Victims of marital rape and battered wives have a lot in common. Women are taught in both cases to be submissive, not to complain or express their concerns. The mindset that victims of both types "deserved it" or "needed to be hit" or the lessons passed down generations that "husbands are supposed to hit their wives" are the reasons why victims of both types still choose to stay in the matrimonial home despite such atrocities.
It is commonly assumed that family members cannot rape women. This assumption stems from the fact that we cannot imagine a daughter being raped by her father or a husband 'raping' his wife because we regard it as a gross violation of the sanctity of relationships that are supposed to be founded on love and sentimental ties. However, this does not negate the fact that it occurs.
Paul Bart examined 1,070 questionnaires and discovered that 5% of them had been raped by relatives, 4% by husbands, 1% by lovers, 3% by ex-lovers, and 8.4% by men with whom they had intimate relationships. This leads us to the conclusion that fewer than 41% of women were raped by complete strangers.
Another way to look at it is that the act is more about power than it is about sexuality. Rape, in Bart's words, is a "power trip, not a passion trip." The barbaric treatment meted out to the wives is an act of hostility, which is essentially an attempt to assert power over a woman; in the case of marital rape, this is a husband attempting to assert power and control over his wife.
Men who lack the resources to maintain a dominant position in society and be treated respectfully use physical force on their wives to get them to obey them, feed their ego, and boost their self-esteem.
This is meant to send the message to the wife that even if her husband is unemployed, uneducated, or poorly educated, he can still dominate and control her. The husband sexually assaults his wife in order to silence her dissent and, of course, to gain power and control over her.
If the courts do not recognise the concept of marital rape, it does not follow that wives are not being raped by their husbands. They are victims of the ideology of "women as chattel," which has denied women the ability to perceive their own sexual victimisation. It is past time for us to respect our women and their right to bodily autonomy by joining the 150 countries that have criminalised marital rape.
The Kerala High Court issued a landmark decision earlier this week, declaring marital rape to be a valid ground for divorce.
In the case at hand, where the appellant coerced his sick wife into having sexual relations with him, the Division Bench of Justice Kauser Edappagath and Justice A Muhamed Mustaqueruled that "husband's licentious disposition disregarding wife's autonomy is marital rape." While marital rape is not punishable in India, the court will recognise it as an act of cruelty and grant a divorce if it is recognised as such.
They also believe that the law should evolve in such a way that human problems are dealt with in a humane manner.
Acts of penetration without informed consent are classified as rape under Section 375 of the Indian Penal Code (IPC). It does, however, state unequivocally that sexual intercourse with one's wife over the age of 15 does not constitute rape. The Criminal Amendment Act of 2013 increased the statutory age of consent from 15 to 18.
Furthermore, in Independent Thought v. Union of India, the Supreme Court, while refusing to rule on the legality of marital rape, held that a girl child under the age of eighteen, regardless of her marital status, is incapable of consenting to sexual intercourse.
The issue of marital rape is not new in the Indian context, and no discussion of it would be complete without mentioning the Phulmani case from Bengal.
In 1889, a 35-year-old husband raped his 11-year-old wife, killing her. Following that, the former British government passed the second Age of Consent legislation, raising the consent age from 10 to 12. This move offended many sections of society and drew criticism from prominent leaders such as Bal Gangadhar Tilak, who argued that the British were interfering unnecessarily with Hindu customs and religion.
The Bengali orthodox Hindus insisted that a girl reaches sexual maturity by the age of ten, and that this act violates the sanctity of Hindu marriage. Matrimony has always been regarded as a sacred institution, and attempting to make even minor rational changes to it elicits considerable hostility from the public, which may explain why the government has remained aloof from personal laws to this day.
As a result, male dominance in marriage and non-interference of the third party in a matrimonial dispute remains the norm even two centuries after Phulmani.
The National Family Health Survey discovered in 2005-06 that 93 percent of the 80,000 women polled had been sexually abused by their current or former husbands.
The 2015-16 National Family Health Survey found no improvement, with data estimating that 99.1 percent of sexual assault cases go unreported. According to National Crime Records Bureau statistics, less than one percent of such incidents were reported.
The Verma Committee, formed in the aftermath of the Jyoti Singh (Nirbhaya) case to strengthen sexual assault laws, concluded that the victim-offender relationship is irrelevant and that the focus should be solely on the presence of consent.
Kanimozhii, a Rajya Sabha member, asked the government on the floor of the Rajya Sabha in 2016 whether they planned to end the exception granted to married men under Section 375 of the IPC. Haribhai Parathibhai Chaudhary, Minister of State for Home Affairs, responded that the government has no such plans because it values the sacred institution of marriage. Poverty, illiteracy, and current social customs were also cited by the minister as reasons for continuing with the exception.
According to the panel formed to review the Verma Committee's recommendations, criminalising marital rape would put the entire family "under stress" and could potentially destroy the institution of marriage. However, some argue that rape has the potential to destroy the institution of marriage.
Furthermore, when discussing criminalization, concerns about misuse frequently arise. Vrinda Grover, a human rights advocate, responds by saying that the difficulty in proving the commission of the offence or its possible misuse should not prevent victims from seeking legal redress.
Penalizing marital rape necessitates changes to the Hindu Marriage Act. Denying sex, according to Hindu beliefs, contradicts the tenets of an ideal Hindu wife. It has also been observed that denial of sexual intercourse is a common reason for divorce. The Karnataka High Court ruled that denial of sex is a violation of sections of the Hindu Marriage Act and thus grounds for divorce.
"The husband cannot be made to suffer for no fault of his and be deprived of his natural urge to enjoy sexual happiness if the wife refuses to share the bed and discharge her duties," the court said. When the shadow of patriarchy weighs so heavily on our belief system, it becomes even more difficult for women to fight for their rights, even those as basic as bodily autonomy.
In his History of Pleas of the Crown, Justice Hale (1736) stated, "Husband cannot be guilty of rape committed by himself upon his lawful wife." He reasoned that once a couple is legally married by mutual consent, the wife is presumed to have consented to sexual intercourse with her husband for the duration of the marriage.
Marriage is viewed by the courts as a contract that requires the wives to engage in sexual intercourse, a contract that they cannot break. The "duty" of sex is distributed equally by law, but it is obvious that it works to men's advantage.
Victims of marital rape and battered wives have a lot in common. Women are taught in both cases to be submissive, not to complain or express their concerns. The mindset that victims of both types "deserved it" or "needed to be hit" or the lessons passed down generations that "husbands are supposed to hit their wives" are the reasons why victims of both types still choose to stay in the matrimonial home despite such atrocities.
It is commonly assumed that family members cannot rape women. This assumption stems from the fact that we cannot imagine a daughter being raped by her father or a husband 'raping' his wife because we regard it as a gross violation of the sanctity of relationships that are supposed to be founded on love and sentimental ties. However, this does not negate the fact that it occurs.
Paul Bart examined 1,070 questionnaires and discovered that 5% of them had been raped by relatives, 4% by husbands, 1% by lovers, 3% by ex-lovers, and 8.4% by men with whom they had intimate relationships. This leads us to the conclusion that fewer than 41% of women were raped by complete strangers.
Another way to look at it is that the act is more about power than it is about sexuality. Rape, in Bart's words, is a "power trip, not a passion trip." The barbaric treatment meted out to the wives is an act of hostility, which is essentially an attempt to assert power over a woman; in the case of marital rape, this is a husband attempting to assert power and control over his wife.
Men who lack the resources to maintain a dominant position in society and be treated respectfully use physical force on their wives to get them to obey them, feed their ego, and boost their self-esteem.
This is meant to send the message to the wife that even if her husband is unemployed, uneducated, or poorly educated, he can still dominate and control her. The husband sexually assaults his wife in order to silence her dissent and, of course, to gain power and control over her.
If the courts do not recognise the concept of marital rape, it does not follow that wives are not being raped by their husbands. They are victims of the ideology of "women as chattel," which has denied women the ability to perceive their own sexual victimisation. It is past time for us to respect our women and their right to bodily autonomy by joining the 150 countries that have criminalised marital rape.