If we were to talk about rape and sexual harassment, under normal circumstances a person would refer to any such incident of violation as heinous. However, there is one “kind” of rape in India that is not illegal, whose perpetrator would not even be seen as a criminal in the eyes of the law. And that is marital rape.
According to Section 375, Exception 2 of the Indian Penal Code (IPC), “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.” A study done by the UN Population Fund tells us that more than two-thirds of married women in India, between the ages of 15 and 49, have been beaten, raped or forced to provide sex. To decode, in India, it is legal to rape a woman as long as you are married to her. We live in 2021, and this is the level of barbarism in our country.
India is a country that will either let the perpetrators of such predatory behaviour roam free or even if it will punish them, it will only happen when it has been years since the crime has happened. Isn’t that exactly what happened with the 2012 Delhi gang rape and murder case? If this is the scenario with the most brutal rape cases of all times, how dare we think that marital rape could even be punishable? Aren’t marriages in India a way to get access to the notion of implied consent of a woman? She’s now a wife, right? Of course, her consent is applicable 24 hours of the day and 365 days of the year.
Undoubtedly, not making marital rape criminal in India is a message to the entire women community of India that their consent to any sexual activity ceases to matter in the face of their husband’s. It tells a woman that after she gets married, her body is her husband’s property and her own right, her own agency and her own autonomy over her body ceases to exist. Rape laws in India are patriarchal to the extent that they clearly tell the men of the country that if you want to rape a woman without getting jailed, you should marry her. According to Indian law, a woman is expected to grant perpetual consent to her husband. After all, what is marriage if not a free license to engage in sexual behaviour at any time of the day?
In a vox populi conducted by ScoopWhoop Unscripted a few years ago, men were seen talking about marital rape as if a thing like that does not even exist. “When you get married through a religious ceremony, you get a license to have sex”; “How can it be termed rape? He is your husband, he has full rights over you”; “How is this rape? If he cannot have sex with his wife, where does he go?”; “If she wishes to have sex, she will lie down on the bed. If she does not wish, she will not lie down”. These were some of the comments made by the men in the video when the anchor, Samdish Bhatia asked them about their views on the heinous practice.
What also is extremely significant when it comes to rape laws in India, is Section 375 (Exception). The provision states that if a man engages in sexual intercourse with a woman under 15 years of age, it shall be called rape irrespective of “consent or no consent”. However, if the woman happens to be below the age of 18, but is above the age of 15 and married, then the incident cannot be termed as an offence of rape. Evidently, this provision not only discriminates between a married woman and an unmarried one but also classifies that the consent of a married woman below the age of 15 is far more valuable than the consent of a woman above the same age.
If a girl who is aged 14 and a married woman aged 20 are both sexually violated, wouldn’t they have similar traumas and fears to bear with all their lives? How can marriage negate the agency, a woman rightfully exercises on her own body? How is the agency not only denied to a woman but is also given away to her husband for him to exercise it as his own property? How can a mere societal institution be given so much more value than a woman’s right to make a choice for herself? It is high time we ask these hard-hitting questions to the lawmakers of our country and ask them to return the entitlement with which they choose to exercise women’s life back to them.
As it heard the case of a man accused of raping a woman on the false pretext of marriage, a Supreme Court bench headed by the Chief Justice of India S A Bobde observed, “If a couple is living together as husband and wife, the husband may be a brutal man but can you call the act of sexual intercourse between them rape?”. The court then granted eight weeks of protection from arrest to the accused.
Rape is rape and indeed, that is the end of the sentence. No condition, whatsoever, can deny the perpetrator of its monstrous conduct. No, the age, gender, sex and marital status of the victim do not matter. We have inherited some of the most absurd penal laws by the British Raj and it is beyond saddening to know that they have remained untouched ever since. Society is evolving each day, every day we as a community are progressing but are laws do not budge. Marital rape cannot be allowed to exist as implied consent for the parties involved and marriage, in no way can imply perpetual consent for a woman. A “no” is no. It does not matter if your wife says it or somebody else and both, the men and the legal system of India need to stop at that.
