marital Rape in India

Does the Institution of Marriage Legalize Rape?

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Sorry ma’am, your husband owns your body. The state cannot be bothered.

 In February, the Supreme Court, responding to a woman’s plea of marital rape, refused to impeach the husband, saying it wasn’t possible to order to make it a criminal offence for one person. Both the wife, a Delhi-based MNC executive and the Supreme Court judge were helpless as marital rape is not a crime in India, and many other countries for that matter.

The woman was challenging the clause to Section 375 of the IPC, which says that sexual intercourse by a man with his wife who is over 15 years of age, even if without consent is not rape. Even if you overlook the glaring contradiction with the legal marriageable age or the age of consent to have sex, this exception to the IPC speaks volumes how little we understand or respect the sexual integrity of women, married or not.

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Despite the frequency of its occurrence both in India and elsewhere, governments continue to think that marriage is a man’s god-given right to use his wife’s body, as he thinks fit As if a woman’s consent did not matter after marriage.

The foundation of this attitude can be traced back to European societies as exemplified by this statement made by Sir Matthew Hale, an eminent member of the law fraternity in 17th century England: “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract.”

That statement is not surprising, coming at a time when women were treated as second class citizens. What is hypocritical however, is the spillover of that attitude in our supposedly enlightened times as shown by recent arguments against criminalizing marital rape in India:

  1. No need to give it legislative attention as it is quite uncommon. Yeah, the law in all fairness, has more pressing things on its mind, like criminalizing beef eating. Why, the fundamental rights of some married women are not fundamental at all.
  2. It is near impossible to prove marital rape. Its criminalization would put an additional burden on the judicial system. Please, the courts have no time for married chattel. It was your own husband. Your self-respect has no place on your conjugal bed.. Please lick your own wounds and psychological scars, if any.
  3. Dissatisfied, spiteful wives may misuse the law. Ok, this argument does have some rationale, but the ratio of valid complaints would significantly outnumber the invalid ones. Let the law discern the truth. Don’t throw the baby out with the bathwater.
  4. The woman implicitly consents to having sex when she marries the man. Of course, Sir Matthew Hale said so. They made the laws. And anyway, how dare a wife refuse sex?
  5. Criminalization of marital rape would prevent reconciliation and destroy marriages. As if saving a marriage is the sole responsibility of a woman, despite the physical and mental indignities.
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in Afghanistan

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