Marital Rape Criminalisation in India - Feminist Conundrums

Trigger Warning: Discussions of Rape and Sexual Abuse

In the Bollywood blockbuster ‘Pink’, Amitabh Bachchan, playing the role of a criminal lawyer, emphasises the need for consent before engaging in sexual activity. ‘No means no,’ he makes it clear, ‘usse bolne wali koi parichit ho, girlfriend ho, koi sex worker ho ya aapki apni biwi hi kyu na ho’ (translated: whether the person saying ‘no’ is your friend, your girlfriend, a sex worker or even your own wife). In an angrier tone he concludes, ‘No means no, and when someone says no, you stop!’

While it is commendable that cinematic endeavours have pushed the need for establishing consent before any sexual activity, especially within a marriage (‘aapki biwi hi kyu na ho’ translated: even if the person saying no is your own wife), the Indian legal system is unfortunately disconcerted with the emphasis on consent during marital sexual relations. Raping your wife in India is not a criminal offence under the Indian Penal Code (IPC). Section 375 of the IPC makes it clear that ‘sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape’. India has not followed suit with the 150 countries that have criminalised marital rape and is instead bound by the colonial vestige rooted in Hale’s consent theory. Outlined in 1736, it states that ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and the contract the wife hath given up herself in this kind unto her husband, that she cannot retract’. Patriarchal notions that view marriage as a form of a contract where the woman sacrifices her sexual autonomy are entrenched in contemporary discussions surrounding marital rape in India. In other words, the prejudices of the 18th century are alive in modern-day existence.

The Ministry of Health and Family Welfare in India conducted a National Family Health Survey in 2005 and 2006 and found that two-fifths of all married women have faced physical, sexual, or emotional abuse from their partners. Despite these saddening statistics, the judicial discourse has strived against the criminalisation of marital rape, as this offends the sanctity of marriage supposedly deep-rooted in Indian culture.

In opposition to judicial orthodoxy, feminist advocates have strived to repeal the marital rape exemption. They have highlighted how the exemption perpetuates the sexual subjugation of wives within marriage. Dhonchak writes that the exception should be ‘needs to be wiped off of our statute books at the earliest’. The case for criminalisation is strong. However, I object to the way in which it has been portrayed as the ultimate panacea to protecting women from sexual violence within marriages. Within this article, I want to advocate for a case for wider reform and the need to look beyond the mere push for criminalisation.

Disappearing consent

Judicial statements in the last decades have depicted the importance attached to heterosexual sex within the institution of marriage. The Kerala High Court in the case of Sanjan v Azara held that a marriage without sex results in a life of ‘perpetual torture’. As recently as 2023, the Allahabad High Court held that lack of sex within a marriage can constitute ‘mental cruelty’. Courts have consistently reinforced the orthodox notion that sex is a marital obligation and consent is implied in a marriage. Consent somehow becomes irrelevant when a woman enters her matrimonial home. This creates a ‘conflict’, also termed as the ‘impossibility thesis’. Mandal writes, ‘Quite naturally if the legal category of rape implies sex without consent and the legal understanding of marriage entails compulsory sex, then the two will be considered mutually exclusive and the very notion of ‘marital rape’ a contradiction and an impossibility’. This is phrased in colloquial terms by Sanyal - ‘If sex is a marital duty, how can demanding what is owed constitute rape?’. 

This impossibility thesis, which lies at the root of efforts to criminalise marital rape, depicts that mere criminalisation may be ineffective if not supplemented by alterations in the judicial understanding of sex within marriage. Feminist theorisation in this area is necessary to usher in substantive change. Alongside the same, there is a need to advocate for better gender sensitisation within the judiciary and the police.

Continuum of Violence

Ostensibly, it seems like there is an unequivocal and unopposed push for criminalisation of marital rape within feminist discourse. However, a deeper analysis reveals widespread contestation has occurred on the criminalisation question. Flavia Agnes is opposed to repealing the marital rape exemption and makes a case rooted in a feminist analysis of sexual violence in a conjugal relationship. Agnes argues that sexual violence in marriages is not confined to penetrative sex, but occurs within a continuum of other acts, such as ‘excessive sexual demands, particularly on such occasions as during menstrual periods or immediately after childbirth’, threatening sexual advances towards children, etc. She also asserts that such crude actions may exist within a broader context of physical, emotional and financial abuse. By pushing for criminalisation, feminists place penetrative sex at a higher pedestal, thus succumbing to patriarchal notions of the sanctity of penetrative sexual violation. This is problematic for Agnes, who suggests that current civil remedies should be deployed ‘cleverly’ to protect women from sexual abuse. The extent to which civil remedies can provide adequate protection for women against sexual exploitation within a marriage remains unclear. However, Agnes does raise valid concerns about the continuum of sexual violence which reformers have failed to address in their push for criminalisation.

Conclusion

This article was an attempt to demonstrate how a unilateral emphasis on legislative criminalisation as a panacea for the protection of women from sexual violence may not be beneficial, if not supplemented with an analysis of orthodox views on consent within marriage and deliberate efforts to deconstruct entrenched patriarchal perceptions of conjugal intimacy. Alongside this, feminists must move beyond the myopic understanding of sexual violence as a mere 'penetrative' violation and consider the continuum of violence that occurs within a marital relationship. The criminalisation of marital rape will most certainly be an instrumental symbolic move in protecting women from sexual subjugation within marriages. Petitions to criminalise marital rape have been pending before the Supreme Court. As a momentous judgment looms on the horizon in the upcoming months, feminists await the outcome with a mix of hope and trepidation. However, in the absence of wider reforms, should marital rape indeed become a criminal offence, mere criminalisation may ultimately fall short of offering survivors the comprehensive support they require.

By Mahek Bhatia