Marital Rape in India

Simran Kaur Centre for Feminist Foreign Policy marital rape in india

Protests demanding change for the stance on rape are often marked by signs of ‘HANG THE RAPISTS’.  As the government of India is challenged by an increasingly publicised response to rape occurring in an alarming amount of public space, especially on transport, a discourse has also emerged concerning cases in the private realm.  This accentuates a culture of misogyny and dehumanisation, reinforced in its criminal code; essentially, devaluing the rape experience of a married woman. Her marital status determines her victimisation. This article engages with debates surrounding the public/private dichotomy.

Section 375 of the Indian Penal Code provides six descriptions of circumstances in which a man is said to have committed rape. The exception is for sexual intercourse by a man with his own wife, as long as the wife not under fifteen years of age. However, the legal age for marriage in India is 18. Husbands remain exempt from rape despite global and local resistance to change this. The state’s failure to recognize and condemn marital rape is its complicit acceptance.  This injustice perpetuates challenging gendered assumptions and an overwhelmingly-proven gendered phenomenon.

As understood by the Penal Code, rape is a gender-based crime as most victims are female and most perpetrators are male (Rumney and Hanley, 2001: 135). Datta (2016: 174) explains that, “Indian constitutional laws construct an ambiguous and often contradictory sphere of gender/sexual rights and freedom,” as the “sphere of legal rights have produced a fundamental distinction between sexual violence across public and private domains.” This explains why there is an increasing response to cases occurring in the public realm in contrast to those in the private sphere, in which rape remains taboo, so women are even more powerless.

The state’s failure to recognize and condemn marital rape is its complicit acceptance.

“It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.,” (Maneka Gandhi, 2016). This undermines the Ministry of Women and Child Development’s mission to “maintain gender concerns, creating awareness about women’s rights and facilitating institutional and legislative support for enabling them to realise their human rights” (Ministry of Women and Child Development, 2016).  The words of the Union Minister, Maneka Gandhi, present a government resistance to change.  

The UN Population Fund found that more than two-thirds of married women in India, between the ages of 15 to 49 have been beaten, raped, or forced to provide sex. The UN Committee on the Elimination of Discrimination against Women recommended India to address these injustices. This was also reinforced in March 2016 by the UN Development Program Chief Helen Clarke, as no visible efforts had been made in reassuring married women that they have a say over their bodies.

Often, only one narrative is recognised in the public sphere, whilst other, more nuanced narratives are neglected. This concerns the varied gendered assumptions, as, to an extent, women can liberate themselves and be liberated, although it requires some sacrifice. This helps to explain the imbalanced response to rape across these spheres. India’s law on marital rape exemplifies the unwillingness of the government in their attempt to effectively evaluate this issue. This interrogates a broader debate of sex and sexuality that has its roots in the culturally and societally determined gender roles. There is a fear of retaliation and humiliation, and family honour and reputation are often prioritised over justice. As a result, cases go unreported and long court processes are avoided.

This sustained stance reveals that marriage constitutes consent. It also highlights a regime of inequality as rape is perceived by some as acceptable and inevitable, reinforced by the lack of action by government officials. This viewpoint has been sustained in policy practice, reinforcing inequalities of perceived cultural beliefs.  By removing the exception, India will become further aligned to its constitutional responsibility of “renouncing practices derogatory to the dignity of women”.

Simran Kaur is a recent graduate in Politics and International Relations at the University of the West of England.

Marissa Conway