India is one of the 36 countries in the world where marital rape is still not considered a crime, despite it being recognised as a form of sexual abuse and domestic violence. The rising instances of women being forced to have sex with their husbands, despite their refusal, are a matter of grave concern. Such an act is a clear example of non-consensual sex being imposed upon the wife. Should this not be qualified as rape?

What is the current legal position regarding Marital Rape?

Section 375 of the Indian Penal Code clearly defines the acts that qualify as rape. However, a controversial exception is mandated in the law. Sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape. Even after visible cases of misuse of the exception by men and a clear violation of consent and choice, the law remains rigid. It also raises issues of consent and property rights over an individual’s body.

In India, marriage often becomes a tool to transfer a woman’s rights to her husband. This is an outcome of the patriarchal setup. An urgent introspection on rape laws is required to incorporate marital rape into its fold and to ensure women have rights over their own bodies.

Sexual intercourse must remain a matter of personal choice and agreement between both parties. Women must retain autonomy over their sexual activities, irrespective of whether they are married or not

Read: Not Criminalising Marital Rape Violates Women’s Rights: NGOs To HC

Does marriage make you the husband’s property?

By refusing to acknowledge the offence behind forced sex in a marriage, we are implying that once married, a woman becomes her husband’s property. She must obey the instructions of her better half and must not question his integrity and intentions at any cost. This furthers the belief that married women are entirely dependent, controlled and represented by their husbands, thus losing their individual identities.

Another major concern reflects on the possibility of marital rape being supplemented with repeated instances of domestic violence and abuse. A woman in such a situation can approach the court with a complaint of domestic violence. But punishment in the case would still not reflect the compensation for the sexual assault she went through. Chances are that such a punishment would not deter the husband from attempting it again, leaving the woman in a continuous cycle of oppression, harassment, and vulnerability.

Hurdles to law implementation

The government has been against criminalising marital rape on account of implementation issues and feasibility. Maneka Gandhi, Minister for Women and Child Development, said, “It is considered that the concept of marital rape as understood internationally cannot be suitably applied in the Indian content due to various factors like level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindsets of the society to treat the marriage as a sacrament etc.”

The Supreme Court has also been consistent in ruling out judgements against marital rape.

Another problem is often related to the non-feasibility of gathering evidence of marital rape. Considering that most Indian women go through the trauma at least at some point in their lives, such an excuse doesn’t seem plausible. Marriage in any way must not guarantee the husband a right over his wife’s body.

Considering the gravity of the offence, quick legal enforcement and vital preventive measures must be undertaken to root out marital rape.

Read: Delhi HC Takes Up Marital Rape Issue

Picture Credit: Hindustan Times

Nimisha Is An Intern With SheThePeople.TV

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