A long battle for bodily agency awaits married women
PremiumWhile the case to make marital rape a legally punishable offence has gained traction, a change in law alone will not suffice for Indian women to gain actual agency over their bodies
As the Delhi high court hears petitions challenging the constitutional validity of the clause 2 exception under Section 375 (rape) of the Indian Penal Code, which grants legal immunity to husbands if the wife’s age is over 15, the discourse on ‘marital rape’ has gained traction. The Centre is yet to take a “final stand" on such “intimate family relations" in “private spheres of life".
In the 1970s, the so-called divide between the ‘private’ and ‘public’ spheres of life were challenged by radical feminists. In her essay ‘The personal is political’, Carol Hanisch asserted that such distinctions are “fallacious" and “women’s lives were not the outcome of individual choices, but, part of a systematic patriarchal oppression, and there were political dimensions in their private lives, be it in marriage, in the kitchen, bedroom, the nursery or at work."
Consequently, many problems presumed to be ‘personal’ especially ‘bodily rights’ like sexuality, abortion, rape, et al, have since been raised on public platforms.
Globally, the 19th-century legal discourse interpreted family conduct in terms of the ‘natural law’ that “each man has the power of law over children and wives", and considered marital rape an ‘oxymoron’, “a wife being legally a husband’s sexual property." Most post-colonial countries, including India, defended marital-rape immunity on the ground of “preservation of the institution of the family" and “irrevocable consent in a marriage". Even in 2017, India took the stance that “marital rape could not be added as an IPC offence, as it could have a destabilising effect on the institution of marriage" and “become an easy tool for harassing husbands".
As feminists of the 1990s turned the spotlight on issues of macro-socio-legal human rights like sexual autonomy, universal womanhood and gender violence, in 1993 the United Nations Declaration on Elimination of Violence Against Women (DEVAW) declared “any violence against women, including marital rape, as a violation of fundamental human rights". The Beijing Declaration of 1995 recognized it “as a form of violence against women in the family". The concept of ‘safe sex’ also emerged as a public-health issue in the wake of the HIV/AIDS pandemic. In many liberal societies, marriage also metamorphosed into a ‘companionate relationship’, and ‘a partnership of equals’. In a changing global scenario, India, at a UN forum in 2015, proclaimed that “the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to factors like level of education, poverty, myriad social customs… and the mindset of society."
By 2019, more than 150 countries had made it legal to file a criminal complaint against partners for non-consensual sex, while India remained among the 36 where legal instruments kept marital rape behind the “sacrosanct curtains of marriage".
A 2021 report of the UN Population Fund (UNFPA) said that “nearly half the women and adolescent girls in developing countries are denied the power and agency to make choices about their body without fear or violence", and 20 countries still have ‘marry your rapist’ laws. India, may not have any such specific law, but in many rape cases, a marriage offer has directly or indirectly minimized the punishment.
A 2013 UN survey found that one in four men in six countries surveyed, including India, said they had raped a partner. Since it is not an offence in India, we have no separate data. However, the December 2020 round of the National Family Health Survey (NFHS) reported that more than a quarter of the women surveyed in seven states said they had been subjected to domestic violence, including sexual violence, while the NFHS for 2015-16 reported that an “average Indian woman is 17 times more likely to face sexual violence from her husband than from others". Further, only a paltry 5% of women have been able to choose their husbands (IHDS, 2011-12), and 2018 research data reconfirmed that ‘consent’ is often missing in Indian marriages, as 93% of married Indians had an arranged marriage. State laws on rape, kidnapping, abduction, theft, etc, are often let loose on consenting couples, while the recent ‘love jihad’ laws have turned inter-faith couples into offenders.
The Justice Verma Commission in 2013 had recommended removal of the clause 2 exception for determination of culpability solely on consent. Justice Chandrachud in a major 2018 plurality judgement endorsed the “feminist critique of privacy" as an intrinsic part of Article 21, saying that any “contemporary formulation of privacy must emancipate individuals, be it within the home, the marriage, family, or society, and criminalising marital rape, is not about the State invading the bedroom, but, about ensuring the principles of consent, dignity, and autonomy". The Gujarat high court also recently commented that “it is high time to consider marital rape as manifestly arbitrary and make sexual autonomy a woman’s fundamental right".
Nevertheless, many attitudinal surveys in the US show that even though forced sex in marriage is illegal, many still regard “the rape of a wife as far less serious than a similar assault on an acquaintance or a stranger", and “even victims themselves, sometimes don’t view the act as rape".
As the Delhi high court said that the matter “cannot be deferred endlessly", it has shown a sense of urgency. However, even if the legal battle is finally won, perhaps a longer battle awaits us against ‘moral guardians’ of society before we can assure women justice.
Archana Datta is a former director general, Doordarshan and All India Radio; and former press secretary to the President of India.
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