Why is Marital Rape Still Not Crime in India?

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The Marital Rape continues to be Legal in India. It’s when a man imposes sexual intercourse on his wife with force or when the wife is not able to consent. According to a World Bank Data, India is one of the only thirty five countries in the world where spouses or marital rape is legal and that’s surely not a good list to be on. For years, activists, civil society and people in general have been asking for marital rape to be criminalized but it does not seem like it will happen anytime soon because the government does not want it and that is probably problematic.

On 29th August, 2017, the Centre told the Delhi High Court that if the marital rape is criminalized, then it can destabilize the institution of marriage and would become an easy tool to harass husbands. The Centre also said that criminalizing marital rape may also lead to its misuse just like Section 498A of Indian Penal Code that deals with cruelty to a wife by her husband or his relatives. This is the government’s response to petitions filed by All India Democratic Women’s Association, NGO RIT Foundation and survivor of a marital rape. The petitions challenge the exception to section 375 which defines rape. The exception states that the sexual intercourse of a man with his own wife, the woman not being under the age of fifteen, does not constitute rape. And add an insult to injury was what a Swaraj Kaushal tweets. Swaraj Kaushik is a Supreme Court Lawyer and Former Governor of Mizoram and the husband of Sushma Swaraj, the Union Minister of Foreign Affairs. He wrote that there is nothing like marital rape. Our home should not become police station and also, there will be more husbands in the jail than in the house. So, these tweets not only suggest that post sex in marriage cannot be called rape but they also make fun of the issue. Over the past few years, many political leaders and ministers have given their two pennies on the debate of marital rape and the most common one must act the most ridiculous one is that introducing a law against marital rape will destroy the sanctity of marriage.

Even Smt. Menka Gandhi said in a written reply to the parliament that the  marital rape concept as it understood internationally cannot be applied appropriately in the Indian context due to various factors such as level of education, illiteracy, poverty, a myriad of customs and social values, various beliefs of religion and the mentality of society to treat marriage as a sacrament. In fact, the Justice Verma Committee which was formed after the Jyoti Singh rape case or Nirbhaya case to recommend amendments to the criminal law had also recommended that the exception of marital rape should be removed but this recommendation was rejected.

How big and grave this problem is? It is reflected in the numbers. A study conducted by the International Center for Research on Women (ICRW) and United Nations Population Fund in 2014 in 8 states of India showed that a third of men in these states admitted to having forced a sexual act on their wives or partners. The National Family Health Survey – 3 (NHFS-3) also showed that the majority of sexual violence reported by women was within the marriage. Perhaps India can learn a thing or two by our neighbors, Bhutan or Nepal to criminalize marital rape. Even though the United Nations have been urging India to do the same,

Let’s not romanticize the idea of marriage to the extent of overlooking matter of grave concern, and let’s not let the marriage turn into a state-sanctioned license to rape women and to take away their sexual autonomy as the Justice Verma Committee said “An attainment of equality of women and empowerment have to be essentially a combined effort of both the individual and state”.