The Narendra Modi government’s reactionary stand that criminalising marital rape would “destabilise the institution of marriage” and could become an easy tool to “harass husbands” in RIT Foundation vs Union of India, which is pending before the Delhi high court, is utterly disappointing. The government seems to have found some bizarre correlation between saving the institution of marriage and not criminalising marital rape. It is difficult to understand how rape of a woman by her husband is any less brutal than triple talaq or polygamy, which the present government seems to have been much concerned about. Such ignominious behaviour of the Centre echoes our innate societal misogyny, which over the years has led to further subjugation of women.

The Centre has also submitted before the Delhi high court that “what may appear as marital rape to an individual wife, it may not appear so to others”. Such arguments stem from the basic structure of criminal law which prescribes the standard of “reasonableness” or “reasonable person” as one of its cornerstones. In criminal law, the act or omission of the accused is to be judged from the lens of “reasonableness” or “reasonable person”, which is generally the perspective of “an average, ordinary person who is a representative of the general community”. Such an approach seems to be problematic for marital rape in particular, because of the mainstream perception that marriage gives the husband constant consent for sexual intercourse.

Also read: India Needs to Have a Serious Conversation About Consent, Marriage And Marital Rape

To put it differently, in a patriarchal society, that “reasonable person” is always a male, who judges the place of a female in the social process. Women, therefore, end up being perceived as baby-making machines where their right to bodily autonomy and reproductive rights are inconceivable and preposterous. According to Morton Hunt, an American psychologist who is considered one of the first to engage with the issue of marital rape, “the typical marital rapist is a man who still believes that husbands are supposed to “rule” their wives. This extends, he feels, to sexual matters: when he wants her, she should be glad, or at least willing, if she is not, he has the right to force her. But in forcing her, he gains far more than a few minutes of sexual pleasure. He humbles her and reasserts, in the most emotionally powerful way possible, that he is the ruler and she is the subject.”

Feminist scholars recognise the ubiquitous influence of patriarchy and virile nature of norms on law and demonstrate their effects on the material conditions of women and those who not conform to “cisgender norms”. The inability of law and legal institutions to deal with marital rape exposes the limits of the law. It shows that the law predominantly serves the aspirations of the dominant class, at the expense of the marginalised and weak. In a male dominated society, therefore, the struggle of women is not just limited to the existing societal structure, but also institutions which present themselves as the epitome of neutrality and reasonableness.

Males, as a dominant class, have internalised this belief that women are their property and the value of women as a property is measured largely by their “sexual purity”. Rape, therefore, can be theorised as a property crime against a woman’s husband or father. In ancient times, a raped woman was considered relatively less valuable as property, and penalties for such crime often involved fines or other compensation paid not to her but rather to her husband or father. Marital rape exemption is evidently a legacy of this approach. Since an act against one’s property is generally not considered as a crime, therefore, it is assumed that no crime is committed when a man forces intercourse upon his wife, since she is under his possession and ownership.

Also read: Government Denies Marital Rape Occurs, National Survey Shows 5.4% of Married Women Are Victims

In a survey conducted by International Centre for Research on Women (2011) nearly 20% of Indian men reported at least once having carried out sexual violence against a female partner. In another study by National Health and Family Survey (NFHS-4) for the year 2015-16, 5.6% women have been reported as victims under the category of “physically forced her to have sexual intercourse with him even when she did not want to”.

It is pertinent to mention that in the aftermath of the Jyoti Singh gangrape in 2012, Justice Verma Committee was constituted with an objective to strengthen the anti-rape laws in the country. The Committee strongly recommended that the exception for marital rape be removed. The Committee added that: “The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.” The Committee also highlighted the recommendations made by the CEDAW Committee in respect of India in 2007 which asked for “wide[ning] the definition of rape to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape”. However, though the majority of recommendation of the Verma Committee was incorporated, the suggestion to criminalise marital rape failed to find a place in the Criminal Law Amendment Act 2013.

The recent judgment by the Gujarat high court in Nimeshbhai Bharatbhai Desai vs State of Gujarat (2017) elaborately dealt with the issue of marital rape, and stated that, “[m]aking wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape”; however, due to non-recognition of marital rape as a crime under the Indian legal framework, the court held that the husband is liable only for outraging her modesty and unnatural sex. Similarly, the apex court in Independent Thought vs Union of India and Anr (2017) has criminalised sexual intercourse with a minor wife aged between 15 and 18 years, but has refrained from making any observation regarding the marital rape of a woman who is above 18 years of age.

While the Narendra Modi government has been exceptionally active in pointing out lacunas within Islamic marital practices, it has failed to address the issue of gender violence in general, one such appalling example being the non-criminalisation of marital rape. The selective sympathy for one particular class of women by the government to fragment the consolidation of Muslim votes for political gain is disgraceful. It’s the moment in time when we question why marital rape, despite being one of the most heinous crimes one can commit against a woman, has failed to gain recognition in the eyes of the law.

Sumedha Choudhury studies at Faculty of Legal Studies, South Asian University, New Delhi. She can be contacted through email at sumedha.choudhury.14@gmail.com.