Why criminalisation of marital rape is still a distant dream in India

The Centre has submitted before the Delhi high court that 'what may appear as marital rape to an individual wife, it may not appear so to others'.

The Narendra Modi government’s reactionary stand that criminalising marital rape would “destabilise the institution of marriage” and could become an easy tool to “harass husbands” in RIT Foundation vs Union of India, which is pending before the Delhi high court, is utterly disappointing. The government seems to have found some bizarre correlation between saving the institution of marriage and not criminalising marital rape. 

It is difficult to understand how rape of a woman by her husband is any less brutal than triple talaq or polygamy, which the present government seems to have been much concerned about. Such ignominious behaviour of the Centre echoes our innate societal misogyny, which over the years has led to further subjugation of women.

The Centre has also submitted before the Delhi high court that “what may appear as marital rape to an individual wife, it may not appear so to others”. Such arguments stem from the basic structure of criminal law which prescribes the standard of “reasonableness” or “reasonable person” as one of its cornerstones. In criminal law, the act or omission of the accused is to be judged from the lens of “reasonableness” or “reasonable person”, which is generally the perspective of “an average, ordinary person who is a representative of the general community”. Such an approach seems to be problematic for marital rape in particular, because of the mainstream perception that marriage gives the husband constant consent for sexual intercourse.

To put it differently, in a patriarchal society, that “reasonable person” is always a male, who judges the place of a female in the social process. Women, therefore, end up being perceived as baby-making machines where their right to bodily autonomy and reproductive rights are inconceivable and preposterous. According to Morton Hunt, an American psychologist who is considered one of the first to engage with the issue of marital rape, “the typical marital rapist is a man who still believes that husbands are supposed to “rule” their wives. This extends, he feels, to sexual matters: when he wants her, she should be glad, or at least willing, if she is not, he has the right to force her. But in forcing her, he gains far more than a few minutes of sexual pleasure. He humbles her and reasserts, in the most emotionally powerful way possible, that he is the ruler and she is the subject.”

Feminist scholars recognise the ubiquitous influence of patriarchy and virile nature of norms on law and demonstrate their effects on the material conditions of women and those who not conform to “cisgender norms”. The inability of law and legal institutions to deal with marital rape exposes the limits of the law. It shows that the law predominantly serves the aspirations of the dominant class, at the expense of the marginalised and weak. In a male dominated society, therefore, the struggle of women is not just limited to the existing societal structure, but also institutions which present themselves as the epitome of neutrality and reasonableness... Read More

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