Marking India’s 71st Independence Day, Prime Minister Narendra Modi, in his address to the nation on August 15, said promoting the advancement of women was key to his vision of creating a “New India” by 2022. Yet, in the same month, his administration defended in the Supreme Court a clause in the Indian Penal Code that essentially prevents a man from being prosecuted for raping his wife if she is 15 years of age or older. The government, in response to a petition filed by a non-governmental organisation challenging the clause, said the clause was meant to “protect the institution of marriage”.
Marital rape is a grave, yet widespread form of violence against women in India. According to the National Family Health Survey-4 (2015-2016), an authoritative nationwide survey, 29% of women between 15 and 49 years of age said they had faced physical or sexual violence at the hands of their husbands. Yet, Section 375 of the Indian Penal Code, which defines rape, contains an exception that states:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
The only situation where marital rape is recognised as an offence, then, is when the wife is under 15 years old. This provision effectively ensures, on the back of an unjustified distinction, that some married women are denied the rights that unmarried women have – the textbook definition of discrimination.
The exception clause effectively denies women agency over their own bodies. It reinforces the patriarchal notion that a woman’s body is her husband’s property, and it is blind to the realities of sexual violence experienced by women within marriages. It also allows girls aged 15-18 (18 being the age of consent for sex) to be raped by their husbands with impunity.
Last week, the Centre, in response to a petition filed before the Delhi High Court that also seeks to criminalise marital rape, argued that India should not blindly follow western countries in making marital rape a criminal offence. Ironically, the exception clause in Section 375 is itself a relic of the British Empire, based on the 17th-century English common law notion that women agree to sexual intercourse with their husbands on marriage, and cannot retract their consent. The United Kingdom itself recognised rape within marriage as a crime back in 1991, and international human rights law that India has agreed to be bound by effectively prohibits marital rape. The Central government also seems to believe – based on its affidavit to the Delhi High Court – that “factors like literacy, lack of financial empowerment among women, the mindset of the society, poverty” are more important than individual women’s agency, and somehow justify not punishing men who rape their wives.
Such has been the reluctance to criminalise marital rape that when the government finally decided to amend the 150-year-old rape law in 2013, following the brutal gangrape and murder of a young woman on a bus in Delhi in 2012, it ignored the opportunity to even recognise marital rape. The Justice JS Verma Committee, which was set up to recommend amendments to criminal law in the wake of the Delhi incident, suggested that the exception to martial rape be removed, stating that when determining consent to sexual activity, the relationship between the victim and the accused should not be relevant. Despite the recommendation, Parliament decided to maintain status quo on marital rape.
The wrong argument
Last week, the Supreme Court also appeared to suggest that the exception clause was needed to protect adolescents who have consensual sex. It said during the hearings:
“It is a hard reality and is unfortunate that most of the child marriages happening in the country are done by parents of the girl child. However, to this, there are odd exceptions when a minor boy and girl fall in love and marry on their own… There are cases when college-going teens, below 18 years of age, engage in sexual activities consensually and get booked under the law.”
The concerns that the court raises are very real. In 2014, an analysis of Delhi district court judgements by The Hindu revealed that over 40% of rape cases that were fully tried involved young couples who had eloped, where the girl or woman’s parents had accused her partner of rape. In 2012, various women’s rights groups had opposed the raising of the age of consent for sex from 16 to 18 in the Protection of Children from Sexual Offences Act for the same reasons.
But retaining the marital rape exception is the wrong way to address this problem. The government should instead ensure that the law does not criminalise or punish consensual sexual activity between adolescents, married or not. While sexual contact with a child or adolescent who is unable to give meaningful consent must be punished, the law must also take into account the evolving capacity and maturity of adolescents to make decisions about engaging in sexual conduct.
It cannot be denied that child marriages are still pervasive in India. According to the Census 2011 report, 10.3 crore girls were married before they turned 18. But the Centre’s argument that the marital rape exception is the only way to protect married girls is absurd. What the government ought to do instead is criminalise all forms of marital rape, and ensure that consensual sex between adolescents, even in child marriages, is not punished.
The right to life, recognised by Article 21 of the Constitution, goes beyond mere survival. It includes the right to bodily integrity and autonomy. In its landmark judgement on the fundamental right to privacy last month, the Supreme Court stressed that autonomy and dignity are essential attributes of privacy, which make no distinction between individuals.
As long as marital rape is not recognised as a criminal offence, and the law continues to ignore a woman’s autonomy over her body, her rights will remain violated. If the government is serious about building a “New India” by 2022, it can start by recognising that women’s autonomy over their bodies should not end when they marry.
Smriti Singh works with Amnesty International India