Marital Rape: Why India's Laws Must Change

India's laws on rape, rooted in antiquated principles, continue to exempt marital rape from criminalisation, leaving millions of married women vulnerable to sexual violence by their spouses.

Marital rape is not criminalised in India. For years, women's rights activists have tirelessly campaigned on the streets and in the courts to have it recognised as a crime. The absence of criminalisation has left millions of women vulnerable to legal rape within their marriages.

Chitra Awasthi's RIT Foundation is among the petitioners in the case before the Delhi High Court. The petition argues that "without the right to refuse sex, married women are legally reduced to mere sexual and reproductive subjects."

Awasthi shares her journey: "I have been running the RIT Foundation for years. We do a lot of community work amongst women. I have met with numerous victims of  domestic violence. When I heard the cases of one or two women, I understood that the violence that was going on with these women was of a peculiar nature. The husband would come drunk, beat up his wife, abuse her, humiliate her in every way, and then he would force himself on her. When the women used to talk, we realised that this issue (marital rape) was the most painful amongst all the problems they undergo. They would go through the pain yet they don’t feel comfortable talking about it. One day, a girl came to me and I looked at her case. She was in a pathetic condition and then I thought to myself if I don’t do anything about this then what is the point in all this. That case really inspired me to file the petition before the court."

The contention is that rape within marriage in India, even in the twenty-first century, remains legal due to criminal laws dating back to 1860. Exception 2 to Section 375 of the Indian Penal Code, 1860, explicitly exempts marital rape from being recognised as a crime.

Awasthi emphasises that this issue should not be viewed as a battle between men and women. "Do not make this issue about men versus women. It is not like society’s two groups are at loggerheads with each other. This should be viewed as a situation where the girl is in a problem, and there are four men also standing with her—her brother, father, and son; people who are concerned about her. Instead of making this a man versus woman issue, if we look at it as victim versus villain, it will be better. Many times, I’ve seen this, and I object to it being referred to as an Indian thing. Often, this is combined with Indian culture. If this was nowhere else, then how is there a law against it in every European country? Look at any developed country—marital rape is criminalised there."

The Fight to Criminalise Marital Rape

In many countries, changing times have brought changes to laws recognising non-consensual sexual intercourse by a husband with his wife as rape. In India, numerous petitioners have appealed to the Supreme Court to criminalise marital rape. With nearly 150 countries already having criminalised it, all eyes are now on the Indian judiciary.

Yogita Bhayana, Founder of People Against Rape in India (PARI), strongly opposes the term "marital rape". She explains, "When you say 'marital rape,' I do not understand what this means. Rape is rape. Now, whether it's marital or non-marital, whether it's after marriage or before marriage, in a gang or by a single person, rape is rape. What does rape mean in our constitution, in the IPC? It says that when your body is violated against your will, that is rape. Just because you performed some rituals, committed yourself socially, or legally signed some documents, do you become eligible to rape someone? Just because she has been 'institutionalised' to be your wife or you have received the rights to call her wife, does that mean you can rape her?"

More details here - 

https://theprobe.in/human-rights/marital-rape-why-indias-laws-must-change-4704625