Recently the Delhi High Court asked for the Centre’s opinion on petitions which have been filed against marital rape being legal in India. However, criminalizing marital rape means giving back women autonomy over their body, something which has still not been achieved.

The Delhi High Court recently asked for the the Central Government’s view on petitions which have been filed against section 375 of the Indian Penal Code under which it is legal for a man to rape his wife if the wife is above the age of 15. Section 375 only provides protection to women age 15 and below from marital rape while no legal provisions are provided by the IPC to deal with rape committed by a husband against his wife.

Challenging these petitions is a group of activists from Save the Family Foundation who believe that if legal provisions against rape are made, many married women will begin using the provisions unfairly against their husbands. Also, they are worried that including such provisions in the IPC will ruin the sanctity of the family.

Understanding where such archaic beliefs come from requires going back a bit in legal history. “Raptus’, the Latin word which would evolve to be the present day word ‘rape’ meant a violent theft of either property or person. Thus, sexual violence against women was perceived as a theft of that woman from the male members of her family especially her husband as the husband was the only one allowed to have sexual relations with the wife. Through this married women were reduced to objects in the eyes of the law who could not possibly be raped by their husbands as their husbands were their ‘lawful’ owners.

Marital rape is taboo to speak about because the marriage is the handing over of the woman to the man.

In August last year the Central Government defended in front of the Delhi High Court why marital rape cannot have legal provisions against it. According to them, criminalizing marital rape would violate the traditional family structure of husband and wife and go against article 14 to article 21 of the Constitution. However, the petitioners have stated that allowing marital rape to be legally allowed means violating article 21 of the Constitution which grants all Indians the right to privacy.

Indian law with regards to marital rape still seems to be attached in the belief that the union of a man and woman is sacramental and any disturbance in the union of the two should be looked down upon by society. Indian society still struggles to accept divorced and single women as they go against the expectations that a woman should be married with children. Marital rape is taboo to speak about because the marriage is the handing over of the woman to the man. All this seems to stem from denying women autonomy over their bodies. Until society realizes that the bodies of women are not objects to handed around, issues such marital rape and domestic violence will be difficult to legislate against.

Domestic violence and marital rape given women both physical and mental stress. In a survey conducted in eight Indian states across income, religion and caste found that just 2.3% of the rapes reported by the female participants were done by men other than their husbands. A third of the men also admitted on forcing sexual acts on their wives. There have been cases of women committing suicide because of society ignoring the fact that they were raped by their husbands. The Indian law needs must consider immediately what does it value more: crimes which they can hide under the carpet just to uphold the ideal Indian family or helping thousands of women who suffer from marital rape and domestic violence.

By Soyra Gune
Policy and Legal Research Intern at Safecity