The National Property: The problems of Marital Rape in India
Illustration by Shuttershock
In March 2016, Maneka Gandhi, Minister for Women and Child Development in India, indicated in a written statement that marital rape could not be criminalized in India because of factors including “level of education and illiteracy, poverty, social customs and religious beliefs.” She later explained that the mindset of society was “to treat marriage as a sacrament”.
Marital rape, along with other gender violence cruelties against women, is a persistent social phenomenon in India. Yet unlike the rest, marital rape is often understood as a contradiction and an impossibility (Mandal, 255), which, unsurprisingly, is not unique in the Indian context alone. In seventeenth and eighteenth century Britain, a wife could not claim her personhood in marriage since jurists considered the husband and wife as a single legal entity per the Common Law, which meant that the husband could not commit a crime against “himself”. A woman’s body, property, voice and rights were thus rendered irrelevant so long as the threat was inside the marriage. In Canada, it had been legally acceptable for a man to rape his wife without criminal sanction until 1983. Indeed, rape was seen as “a violation or appropriation of a man’s sexual rights over his wife or daughter and, for some men, a state-sanctioned right over their female slaves” (Torres, 10). Yet to this day, both prosecutors and defence lawyers tend to believe that in a marriage, if a wife usually consents to sex under different situations, the husband is within reason to assume her consent in every occasion (Lazar, 353).
The Indian context proves to be more complicated. According to the 2003 amendment to the Indian Penal Code (IPO), rape is penetration without the woman’s consent, when she is below 18 (Section 375), but when it comes to sexual intercourse with a man’s own wife, it is not considered rape if she is above 15. When the assaulted wife is above 15 and has been living separately with the husband, the husband can be persecuted if “the court is ‘prima facie’ satisfied that the facts indeed constitute as an offence” (Mandal, 258). Thus the IPO allows a glaring rights gap between wives and non-wives as well as minor wives below 15—who enjoy the most protection—and cohabiting wives above 18, with no protection.
The major rationale behind such discrimination is to preserve the sacred marriage to the greatest extent, and oftentimes it is the wife who is expected to maintain her marriage’s longevity. In a study conducted in 1996, 109 judges were interviewed to assess their attitudes to violence against women. 48% believed that there were certain occasions when it was justifiable for a husband to slap his wife; 74% believed that the preservation of the family should be the woman’s primary concern, even if she faces violence; 55% believed that the moral character of a woman was relevant in cases of sexual abuse (Gopalan, 90). Even Mahatma Gandhi himself believed that a chaste woman should be able to ward off rape and if she could not, she should give up her life (Ghandi, 290).
In fact, the rhetoric of “marriage as a sacrament” entails a more extensive political agenda. Mandal explains that by convoluting the concept of “Hindu sacred marriage” with “Indian marriage”, the IPO effectively erases traditions that understand marriage as a contract (Islamic law), or collaboration (indigenous communities). In Post-colonial India where family life (marriage, divorce, inheritance etc.) is regulated by each community’s religious and customary law, deliberate essentialization of “Indian marriage” sets the trigger for nationalist tension and religious rivalry.
And wives become the final victim.
Gandhi and Pushpa Joshi (1988). Gandhi on Women: Collection of Mahatma Gandhi's Writings and Speeches on Women. Ahmedabad: Navajivan Pub. House.
Gopalan, Sarala (2002). “Role of Government in the Empowerment of Women,” Women in Developing Countries: Assessing Strategies for Empowerment. Boulder: Lynne Rienner Publishers.
Indian Penal Code. 1860. Government of India.
Lazar, Ruthy (2010). “Negotiating Sex: The Legal Construct of Consent in Cases of Wife Rape in Ontario, Canada.” Canadian Journal of Women and the Law/Revue Femmes et Droit 22 (2):329–363. doi:10.3138/cjwl.22.2.329.
Saptarshi Mandal (2014). The Impossibility of Marital Rape. Australian Feminist
Studies, 29:81, 255-272, DOI: 10.1080/08164649.2014.958124
Yllö, K., & Torres, M. G. (2016). Marital rape: consent, marriage, and social change in global context. Oxford: Oxford University Press.