The word ‘rape’ evokes different views and emotions from different people. As a desecration of a woman’s sexual agency, all people condemn it alike. But still, a distinction is drawn between a situation when a woman is raped by her husband and a scenario where the perpetrator is any man other than her husband. Rape is rape- it makes no difference, who is the accused? Yet, the penal provisions of our country do not criminalize marital rape. Why is it so? The justifications for not making marital rape an offence are manifold, some of them dating back to 17th century England. It was argued that upon marriage, a woman ‘irrevocably consents’ to sexual intercourse with her husband since the husband protects her after the marriage. Since the consent was irrevocable, it could not be withdrawn. Another preposterous reason given was that the wife was the ‘property’ of the husband. There was the custom of considering women the property of the father before marriage and that of the husband post-marriage. Since the wife was the property of the husband, a man could not commit an offence against his own property and was free to use it in any way he liked. This justification has its roots in the immemorial inequality that has existed between men and women. The mindset that women are subordinate to men and must be subjugated strengthened this defense. Yet another theory that attempts to support marital rape is that the husband and the wife were one ‘unified’ entity, one personality and a person could do no wrong against himself. These defenses made it difficult for victims of marital rape to get justice. In earlier times, even divorce was not available. In contemporary times, these mindsets have undergone radical transformation. Men and women have been bestowed an equal status by the constitution. The practice of considering women the ‘property’ of men has significantly declined and a woman is an individual distinct from her husband. However, when the rape laws of the country were amended significantly in 2013, marital rape was not criminalized. The excuses given were that is difficult to prove marital rape and such an accusation threatens the sanctity of the institution of marriage. Moreover, the wife always has another remedy in the form of divorce. The most pressing justification brought to the fore was that it would lead to a lot of false charges and cause misuse of the law. However, if such an injustice against women is not made an offence, they are bound to get frustrated and file some sort of charges against their husbands. Since, the charges are false, there is bound to be a misuse of the law. Therefore, this vicious cycle is created only due to the non-criminalization of marital rape in the first place. Moreover, the misuse of law cannot be a sound rationale as every law can be and is misused to a certain extent. When the bodily integrity of a woman is damaged, it should not matter even if the person responsible is the husband. A wife has been conferred a status equal to that of her husband and just because she is a woman does not give the husband the right to force or coerce her and do anything without her consent. Such a heinous act needs to be criminalized since rape is rape irrespective of the identity of the perpetrator.
About the Author: This article is contributed by Kudrat Agarwal, our Intern.