Explained: Why Excluding Marital Rape From Sexual Assault Keeps Modern India Oppressed

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While Section 375 of the Indian Penal Code criminalizes all forms of sexual assault involving non-consensual intercourse with a woman, an exception to this section exempts unwilling sexual intercourse between a husband and a wife over 15 years of age from the definition of “rape” and safeguards such acts from prosecution. Even though in 2017, the Supreme Court strengthened protections for the girl child in Independent Thought v Union of India by criminalizing non-consensual sexual activity with a wife under 18 years of age, the court refused to comment on marital rape maintaining that it was not the issue that was being considered before the judges.

The origin of exceptions to rape laws such as these can be traced to British common law that migrated to many parts of the world with colonialism. Consequently, the concept of a contract of marriage that insinuated the wife’s consent to sex with her husband for all time was established in India during the British rule. Further, the traditional legal subordination of the wife to her husband because of the prevailing doctrine of coverture (which subsumes a woman’s legal rights by those of her husband) rendered the idea of consent irrelevant.

In 1857, a case in Massachusetts, The US was the first to use the concept of a marital ‘contract’ as a defense for marital rape. The court recognized the ‘right’ of a husband to have sex and even established his wife’s refusal as grounds for divorce. However, in R v R (1991) in the UK, the House of Lords established that the marital rape exemption did not exist in English law and was merely a common law fiction. This judgement reflected the social and cultural evolution of women’s rights in a marriage. The verdict was later reaffirmed in statute law in the Sexual Offences Act in 2003.

In contrast, the understanding of marriage in the classical Indian context has been to define marriage as “divinely ordained” and so the scope of rights of spouses have been beyond criminal law. As a result, the argument has been made that the state cannot be said to impose constraints on something considered sacred. However, as The Hindu Marriage Act of 1955 has provisions for divorce and lays out restrictions which did not exist in classical Sanskrit law and are now widely accepted, the argument for non-interference of the state remains unconvincing.

There has been significant resistance to criminalizing marital rape in India. The Justice Verma Committee was set up in 2013 to answer the call for stronger ratification on crimes against women following the Nirbhaya rape case. The recommendations of the Committee included the removal of the exception for marital rape and inclusion of specification in the law that the relationship between the perpetrator and the victim should be considered irrelevant relating to inquiries into crimes of sexual violations.

In India, marital rape is not recognised as criminal under law. The Indian culture is such that men believe they have a right over their wife’s body after marriage. (Photo for representative purpose only)

However, the suggestion was rejected by the parliamentary panel to which the report was submitted on grounds such as the destabilization of marriage as an institution and the possible harassment of husbands. A paternalistic rationality of the state for not criminalizing marital rape was the promotion of the public interest by maintaining harmonious marital relationships.

In doing so, such judgments established a certain sphere of private intimacy, a concept that is not unique to India. The 14th Amendment of the constitution of the United States protects a general right to privacy within the family. In 1965, Griswold v Connecticut highlighted the right to marital privacy by invalidating a state law prohibiting the sale of contraceptives to married couples. The Court indicated that penumbras in the Bill of Rights have created zones of privacy. In the 2003 landmark civil rights case Lawrence v Texas, the court negated the sodomy law in Texas and 13 other states legalizing same-sex sexual activity in the US. The court held that no “majoritarian sexual morality” could override legitimate privacy interests.

The recognition of bodily autonomy of women is a step towards implementing the guarantee of Article 21 of the Indian Constitution to a healthy and dignified life. A three-judge bench in India ruling on the rape of an eight-year-old child held in Karnataka v Krishnappa (2000) stated that “sexual violence apart from being dehumanizing is an unlawful intrusion of the right to privacy and sanctity of a female. It offends her (the victim’s) dignity.”

Further, in the 2003 case Sharda v Dharmpal, the appellant and respondent were spouses and the case involved a divorce proceeding. It was held that the matrimonial court had no jurisdiction to compel a woman to undergo a medical examination as it violated her personal liberty under Article 21. In addition, in the Suchita Srivastava case, which arose in the context of the Medical Termination of Pregnancy Act, 1971 which governs abortions in India, the court held that the right to make choices related to sexual activity is comparable to the right to bodily integrity, dignity, and personal liberty.

In the United States in 1973, the landmark decision Roe v Wade ruled that a right to privacy extended to the reproductive rights of women. A recognition of the right to personal privacy and the guarantee of certain zones of privacy existing in the constitution was a revolutionary interpretation of the 14th Amendment. The Court recognized that the fundamental right to abortion was included within the guarantee of personal privacy. In a case regarding spousal consent for abortion in 1992, the court upheld Roe v Wade and highlighted the significance of respect for the private realm of family life.

In the 2017 landmark judgement K. Puttaswammy v Union of India and Ors, the Supreme Court of India recognized the fundamental right to privacy in Article 21. While this important judgment has far-reaching implications on the validity of Aadhar, development of surveillance laws, and decriminalization of homosexuality, the feminist critique of this constitutional right intimates the dangers of privacy when it is used as a tool to veil and uphold patriarchal concepts.

In an admirable interpretation of the judgment, the concurring opinion of the judges was that women have a sacrosanct interest in privacy as an empowering tool despite the ability of the concept of privacy being used against them in the past. By acknowledging the autonomy of women being protected under the constitution, the judgment has made it easier to question the constitutional validity of the marital rape exception in the IPC.

Justice DY Chandrachud writes about privacy being the “constitutional core of human dignity” and distinguishes a type of privacy as “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.”

Justice Nariman expounds on the importance of the dignity of an individual, “the dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices.”

Justice Kaul emphasizes choice, “privacy is about respecting an individual and it is undesirable to ignore a person’s wishes without a compelling reason to do so” and at the end “is an individual’s choice as to who enters his house, how he lives and in what relationship.”

These statements call into question the remedy of restitution of conjugal rights. The origins of this redressal system are in feudal English law. Although the UK abolished this remedy in 1970, India still has these provisions which involve restoration of “all rights and privileges arising from marriage including the mutual relationship of companionship, support, and sexual relations” in case of abandonment.

A three-judge bench of the Supreme Court of India is set to hear a petition challenging the legality of this provision. Not only does this provision violate the right to privacy and individual autonomy of both men and women guaranteed under Article 21, but it also puts societal concerns such as morality before the dignity of individuals without a compelling interest for the state to be forced to interfere.

Denying women dignity within the domestic sphere would constitute as a violation of their decisional autonomy characterised by the court in Puttaswammy. In Lillu @Rajesh v State of Haryana in 2013, the court ruled on the right of a rape survivor to privacy, physical and mental integrity as well as dignity. The state held that in view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape victims are entitled to legal recourse that does not retraumatize them. Failing to provide any legal recourse to victims of marital rape because of the exception in the IPC goes directly against the survivors’ rights.

Another argument as to why marital rape should be illegal in India is assessed from the 1990 judgement of State of Maharashtra v Madhukar Narayan Mardikar. The case dealt with a police inspector who allegedly had non-consensual intercourse with a woman. The court questioned the character of the victim and reduced the punishment of the inspector but held that despite “the dark side of her life” the victim was entitled to her privacy which could not be violated. This was a strong statement for the bodily integrity of a woman, as an eventuality of her privacy. Denying a married woman the same protections violates her fundamental rights.

In the landmark decision in Joseph Shine v Union of India in 2018, the Indian Supreme Court unanimously invalidated Section 497 of the Indian Penal Code 1860 which criminalized a man having consensual sex with a married woman. The discriminating and archaic law was based on the assumption of women being considered property of their husbands. The judgment emphasized on the right to dignity and bodily autonomy of women. The ability of a woman to make choices on every aspect of marriage as embodied by this judgment contradicts the idea of consent being a presupposition of marriage.

India is one of the 32 countries alongside China, Pakistan, and Saudi Arabia that has not criminalized marital rape. While the assertion that the exception to Section 375 of the IPC protects the most intimate sphere of personal privacy of married couples, it actually infringes on the individuals’ right to privacy, dignity, and personal liberty. The exception should be removed in order to ensure that women can exercise their constitutional right to decisional privacy regardless of their marital status.

The Puttaswammy judgement made no distinctions between the rights of married and unmarried women and nothing in Indian jurisprudence suggests that women forego their fundamental rights after marriage. The marital rape exception is an archaic and misogynistic stipulation that has no place in modern India.

Featured image for representative purpose only.
Featured image source: Wikilover90/Wikimedia Commons.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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