Why India Should Criminalise Marital Rape

by Aparna Gupta

The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.” Hence for centuries, the rape laws around the world gave absolute immunity to the husbands, with respect to their wives.

However, the societal perception about marriage has now changed and wives cannot be regarded as mere property of the husbands. Internationally, at least 52 countries have explicitly outlawed marital rape in their criminal codes by April 2011. In India, the judiciary has time and again lamented about the lack of provisions to protect the wives from the acts of sexual perversity by their husbands. The Justice Verma Committee, the UN Committee on Elimination of Discrimination against Women and numerous women rights activists have recommended for the criminalisation of marital rape in the Indian statute. Then why does India still allow this grave discrimination to exist in its laws?

During the passage of the Criminal Laws Amendment Act in 2013, the Indian Parliament widely debated on criminalizing marital rape and finally chose an opposite stance. The law makers who opposed the move argued that it has the potential of destroying the institution of marriage. Such archaic notions are completely flawed as marriages thrive on mutual respect and trust and not through submitting to an abusive husband. It is the act of rape by one’s own husband that destroys the marriage and not the prosecution of the perpetrator.

There have also been concerns regarding difficulty of proof. This has lead to two contradictory issues. The opponents argue that it would be nearly impossible prosecute marital rape, because unlike an unmarried victim, the evidence of penetration is not considered sufficient evidence. Secondly, there is the danger of husbands being wrongly committed of a serious offence. However, these difficulties already exist in the cases where the victim is in an intimate relationship with the accused. The difficulty in prosecution cannot be considered as an excuse for not bringing the required reform in legislation. For instance, the prosecution might also be difficult in cases of murder, but that does not mean that murder shall not be considered as a crime.

The second issue, regarding protecting the innocent husbands from false accusation can be taken care of through implementation of certain measures. The Section 228 A of the Indian Penal Code could be amended to prevent the public disclosure of the husband and not just the victim. This is also important to protect the identity of the victim herself, as revealing the identity of the husband might lead to disclosure of her identity. The law could also compel the wife to give evidence in order to prevent the misuse of the act. Moreover, while such concerns are genuine, the existing power dynamics in the society reflect that investigation regarding allegation of rape is a notoriously difficult process for the complainant. In a country with abysmally low rates of conviction in rape cases, it is hard to believe that criminalisation of marital rape would lead to victimisation of the husbands.

Finally, the purpose of the legislation is to create deterrence against the acts of marital rape and to send a strong social message that marriage cannot be equated to consent. It is to provide legal support to the wives who have been battered, beaten and raped in the name of marriage. It is to tell the husbands that marriage does not give them the license to rape their wives. Despite difficulties in prosecution, if the law is at least able to bring this change in mindsets, then it would be a victory for the law. Therefore, it is time that the Indian parliamentarians look beyond their doubts and criminalise marital rape.

 

Aparna Gupta is currently a fellow with PRS Legislative Research’s Legislative Assistants to Members of Parliament programme. An engineer by training and student of policy by day, Aparna aspires to work in the domain of Human Rights and Gender Violence.

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