The Delhi High Court recently asked the Indian government to explain why the ‘marital rape’ should not be considered a crime. The government followed the court’s instruction and explained its view on the sensitive issue. The view stunned not only the judges, but also people across the country, as the interpretation made clear that the government decided to keep India in the medieval age. Otherwise, it was impossible for the state to openly express such a backward and conservative view.
The government told the court that marital rape should not be made a criminal offence as it could become a phenomenon which might destabilise the institution of marriage and an easy tool for harassing the husbands. Such an argument helps us realise the current state of India as far as logic and mindset of a section of people are concerned. Basically, the state undermined problems faced by the Indian women in an attempt to glorify the institution, called marriage. The state has failed to understand that a woman can’t become her husband’s ‘sexual property’ after marriage.

The controversy over marital rape stems from the failure of Indian penal law to criminalise it. Section 375 of the Indian Penal Code (IPC), which defines rape, has an exception clause, which says: “Sexual intercourse or sexual acts by a man with his own wife (the wife not being under 15 years of age) is not rape.”
However, the main clauses in the section define rape as penetration without a woman’s consent and will. For married women, the only recourse the law offers in instances when intercourse is without consent (can’t call rape as per the existing Indian law) is the much-maligned Section 498-A of IPC (pertaining to cruelty against wife by husband and relatives) and the civil provisions of the Protection of Women from Domestic Violence Act. (Source: The government’s submissions in the Delhi HC)

Interestingly, majority of the Indians is not ready to accept the state’s argument. It is to be noted that Indians had welcomed the Justice Verma report which declared marital rape unfair in 2013. It was clearly mentioned in the report that all kinds of relationships (including sexual) between a husband and his wife should be based on mutual understanding and consent. The Justice Verma report also said that Section 375 of the IPC was unjust and it should be amended.
The Verma report clearly stated that marriage or intimate relationship between a man and a woman could never be the basis of justice in case of rape. According to the report, if there is no consent from a wife or a girlfriend to have sex, then it should be treated as rape. In Indian society, the majority of women have to consult with a man (father, husband or son) before taking any decision. (However) in most of the cases, husbands do not seek their wives’ (or boyfriends do not seek their girlfriends’) consent before enjoying sex. In India (and other South Asian countries), boys are taught that married women are their husbands’ personal property. They are also taught that marriage is basically a form of a husband’s selfless occupation of his wife’s labour, wealth and body. Even, the state expresses the same view.

That’s why the Indian state is trying hard to defend its conservative character even in the 21st century. In the last week of August, former Governor of north-eastern Indian province of Mizoram Swaraj Kaushal stirred a row on social media with controversial observations on marital rape. He tweeted: “There is nothing like marital rape. Our homes should not become police stations.” Such comments are direct attacks on women’s dignity. People, like Kaushal, argue that as there is no witness in the bedroom, what will happen if the wife lies? Perhaps, Kaushal forgot that the law was amended in 1983 after the Mathura rape case. As per the amended law, the victim has no responsibility to prove a crime has been committed. The law says that the accused will have to prove he is innocent.
The state has failed to realise the fact that it will not be possible for a patriarchal system to control the balance of the society for long. If the state plans to deprive women of justice and protection, then it will have to pay the price. Indian women are strong enough to take care of themselves. Of course, it’s a man’s world. But, it won’t be like that for long.

Sexual harassment, either by a stranger or by a husband, is a violation of human rights. Only women have the right over their bodies. In its Convention on Elimination of all forms of Discrimination against Women Act 2014, the UN requested India to amend its law and consider marital rape as a criminal offence. As a signatory to this Convention, India has no other option, but to respect the agreement. More than 100 countries in the world, including neighbouring Pakistan, Sri Lanka, Bhutan and Nepal, consider marital rape as a criminal offence. Women across India are demanding a change in the law (as well as in mindset) and the state will have to accept the demand.

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Published by Koushik Das

Koushik Das (born on May 16, 1976 in Kolkata) is a career journalist. Based in the Indian capital of New Delhi, Koushik writes mainly about foreign policies and current geopolitical issues, and rarely about other topics. His own political ideas are highly influenced by Antonio Gramsci, Louis Althusser, Michel Foucault, Michael Oakeshott and others. English philosopher and political theorist Oakeshott (Dec 11, 1901-Dec 19, 1990) says that “in political activity, men sail a boundless and bottomless sea. There is neither harbour for shelter nor floor for anchorage, neither starting-place, nor appointed destination. But we have to keep afloat”. (Rationalism in Politics, 1962) As a student of Political Science, Koushik loves to share his views on issues, which have great impacts on his thought process (and also on India, South Asia and of course on the global community), with his readers through his website – Boundless Ocean of Politics. By doing so, he tries to keep himself afloat. You will find some of his articles in https://inserbia.info/today/ (https://inserbia.info/today/author/kou_das13_i/), as he has been trying to assess the global geopolitics since 2003. You can also mail him at kousdas@gmail.com View all posts by Koushik Das