“Legally Permitted Rape”: How Can Marriage Deny A Woman Of Her Right Over Consent?

Posted on October 18, 2015 in Society

By Damini Singh Solanki

Every woman has the right to make decisions about her body. Within her marriage, a woman can protect her right to life and liberty but not her body. Whether she wants to have sex and most importantly when she does not want to have sex is her sole decision. But in our society, a wife has traditionally been seen as submissive, docile and inferior. Sex is treated as an obligation in marriage. Hence, the awareness remains dismal; she is made to feel that it is her duty to submit herself to her husband irrespective of her choice.

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The debate surrounding marital rape seems to be ceaseless. The present controversy was stirred when Rajya Sabha M.P. Kanimozhi asked the government if it plans to bring an “amending bill to the IPC to remove the exception of marital rape,” to which the Minister of State for Home Affairs Haribhai Parathibhai Chaudhary replied that the government had no plans to do so, as marriage is a sacred institution in India. He also went on to issue a written statement saying, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context.”

The idea of female inferiority and its influence was exhibited most blatantly during the drafting of the Indian Penal Code by Thomas Macaulay. In clauses 359 and 360 regarding rape, he clearly mentions that sexual intercourse by a husband with his wife was not to be considered rape under any circumstance. Thus, there was a greater amount of bias towards the rights of a husband over his wife against the wife’s right to herself.

Section 375 of the IPC states in its exception clause –
“Sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape.”
Section 376(B) mentions punishment for rape. But this echoes archaic sentiments too by just covering two groups of married women- those being under 15 years of age, and those who are separated.

How can the same law provide legal age for consent to marriage as 18, while protecting from sexual abuse only those who are below 15? Beyond the age of 15, there is no remedy a woman has to get justice.

Married women were never the subject of rape laws. The revolution started with women activists in America raising their voices in 1970’s for the elimination of marital rape exemption clause. It was only after this that this issue began to be discussed out in the open.

Despite several amendments, law commissions and new legislations, one of the most debilitating acts against humanity is not an offence in India. Are the women in India different than those in the UK, USA or Australia? The justification for legalising this sin seems ridiculously bizarre. The legislations afford absolute power to the husband to impose himself on his wife and exercise complete control over her body, which is a clear violation of Human Rights.

Additionally, since the abuse takes place in a relationship of trust, the psychological scars are too deep to be healed with time alone. Many leaders of the ruling party have stated on news channel debates that a woman should just walk out of a marriage where she is subjected to sexual abuse. I want to ask them – is it enough to just walk away? How is the woman supposed to be at peace knowing that her rapist is out there? He is living his life as if nothing wrong has been done, while she barely manages to make ends meet, as economic independence remains a dream for many Indian women.

In the aftermath of the Delhi gang-rape case of 2012, Justice Verma Committee was set up to recommend amendments to the existing laws in case of sexual assault to provide a quick trial and enhanced punishments.
The committee recommended the removal of exception clause for marital rape, but so far no steps have been taken to abolish this impunity. Several states of the world have already recognised it as an offence, thus breaking the age old male chauvinistic viewpoint.

Marital rape in India can only be seen as a legally permitted rape. The stance of judiciary makes it evident that after marriage, a woman ceases to be under the jurisdiction of Indian Law and enters the jurisdiction of a single man who will govern her life from then. Isn’t consent a sine qua non?

Marriage doesn’t thrive on sex, and fear of frivolous litigations should not stop from giving protection to those who find themselves stuck in this trap of abuse. Apart from judicial awakening; what we as a nation desperately need is a generation of awareness. “Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect women’s human rights,” says the UN.

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