Indian men have the legal right to rape their wives. In India, marriage is a licence to rape. In India, no means no when it comes to marriage. In India, not all rape is rape. Let’s put it another way: If a guy rapes his wife, India’s rape laws do not apply. Rape is defined as “non-consensual sexual intercourse with a woman” under Section 375 of the Indian Penal Code.
It does, however, exclude the husband from any criminal penalties if he forces intercourse on his wife without her consent if she is over the age of 15. The Supreme Court reduced the 15-year sentenced to 18 years. In India, marriage is defined by the law as an irrevocable implicit consent.
The recent ruling of the Chhattisgarh High Court, which has been widely criticised, should come as no surprise. After all, when the distinguished Chhattisgarh High Court judge NK Chandravanshi freed a man accused of raping his wife by ruling that sexual intercourse between a man and his wife is not rape — even if it is forced or against her will — he was simply citing from the law of the land.
Surprisingly, Indian High Courts have frequently disagreed on the legitimacy and definition of marital rape. The Kerala High Court has declared that, despite the fact that marital rape is not a criminal offence, it can nonetheless be used as a basis for divorce as a kind of cruelty.
According to the Kerala High Court, “Marital rape occurs when a husband treats his wife’s body as if it belongs to him and commits a sexual act against her will. Bodily integrity is included in the right to respect for one’s physical and mental integrity, and any disrespect or violation of bodily integrity is a breach of one’s autonomy.”
The Gujarat High Court declared in 2018 that a husband’s non-consensual intercourse was not rape. The Delhi High Court ruled in the same year that both men and women had the right to say “no,” and that marriage did not imply consent. While one would expect the Supreme Court would have provided more clarity and waded into the sexist quagmire of misogyny by providing legal protection to women, this is not the case.
Over 5,000 women’s rights activists in India signed an open letter in March this year, demanding then-chief judge SA Bobde to resign and apologise. The chief justice had elicited such disdain by simply asking two questions. Justice Bobde had inquired as to whether a guy accused of raping a juvenile girl was willing to marry her.
“When two people are living as husband and wife, regardless of how harsh the husband is, can the act of sexual intercourse between them be labelled rape?” the top justice asked in another case of marital rape. Do such inquiries offer sexual violence credibility in a country that is often ready to normalise it?
Over a hundred countries have made rape in the bedroom illegal. However, India stands out among the illustrious group of approximately 32 countries where marital rape is not illegal. Pakistan, Bangladesh, Afghanistan, Botswana, Iran, Nigeria, and Libya are among the league’s distinguished members. Our British-imposed criminal laws remain in place, despite the fact that the English criminalised marital rape in 1991.
In 2016, the government told the Rajya Sabha that the concept of marital rape was an international one and cannot be applied in the Indian context due to factors of poverty, illiteracy, social customs, religious beliefs and the ‘sanctimony of marriage’. The Delhi High Court on Thursday told the Centre that it will continue hearing the petitions challenging the legal exception that protects men who have forced non-consensual intercourse with their wives from criminal prosecution, and not wait for the government’s ongoing process of initiating reform in the criminal laws.
Justice Shankar observed that the expectation of sex in a relationship between a customer and a sex worker with such expectation in a married relationship need not be equated and told the amicus, “If we are creating an offence, there is a man who is going to be punished for it. The lady has suffered no doubt and we have to definitely empathise to the maximum degree with that, but we must keep in mind that what is the consequence is that a man will become liable to be punished with 10 years. So let’s not just look at this concept of discrimination by looking from the point of the lady”.