India’s Constitution conceives of us Indian citizens — men and women alike — as possessing equal rights, being of equal dignity, having freedom of expression and being vested with liberty. These rights and freedoms were considered mandatory in order to enjoy citizenship. With the adoption of the Constitution, this citizenship or constitutional self meant that each Indian was of equal worth, irrespective of caste, gender or religion. Traditional practices such as untouchability and segregation by caste were made to yield to the constitutional promise of ‘equality of every Indian citizen’.
The ability to consent or withhold such consent in the context of sex is a crucial ingredient of this constitutional self. As contemporary India confronts sexual assault and responds to it with frantic media coverage, incessant rhetoric by politicians, a flurry of new legislations and fast-track courts, sexual assault within the marital relationship is left exempted by the courts and the lawmakers. By exempting marital rape, our lawmakers and courts are withholding from Indian women the ability to be a part of the idea of India that the Constitution conceives for all its citizens.
The two chief lines of rhetoric in opposing the legal prohibition of marital rape are the following: first, it is ‘Western’ to criminalise marital rape; second, it will lead to a breakdown of the family.
Let us first deal with this so-called argument of marital rape being a ‘Western’ offence. Our South Asian neighbours such as the erstwhile Hindu monarchy of Nepal and the Gross National Happiness Index-believing Bhutan have both criminalised marital rape. ‘Non-Western’ countries such as Angola, Belize, Bolivia, Brazil, Cambodia, Croatia, Chile, Cuba, Cyprus, Ecuador, El Salvador, Fiji, Gambia, Kyrgyzstan, Lesotho, Malaysia, Mexico, Namibia, South Africa, South Korea and Turkey all criminalise marital rape. According to the United Nations (UN) Secretary-General’s in-depth study on all forms of violence against women (which was launched in the UN General Assembly on 9 October 2006), 104 countries have rendered marital rape prosecutable. Of these, 30-odd countries have made marital rape a specific criminal offence while the rest do not exempt marital rape from general rape provisions.
In 1993, the UN General Assembly issued the Declaration on the Elimination of Violence Against Women. Article 2(a) of this declaration details practices that constitute violence against women within the family; it highlights marital rape along with practices such as female genital mutilation, sexual abuse of female children within the household and dowry-related violence.
A UN General Assembly Declaration is indicative of an overwhelming sentiment that exists on a specific issue within the UN community of nations. That this was the sentiment well over 20 years ago tells us something about the feelings of the international community on the issue. India is very much a part of this UN family and would like to assume a leadership role within this community. Such leadership aspirations, however, do not extend to leading in the context of violence against women. Here, we run with countries such as Saudi Arabia, Afghanistan and Pakistan and certainly not in tune with a majority of the nations that constitute the General Assembly.
In the context of the law, there is nothing Indian about the origins and drafting of the Indian Penal Code (IPC) 1860. Section 375 of the IPC, which defines the various instances of when a man is said to commit rape, has its origins in the colonial raj. The Justice JS Verma committee, established after the horrific gangrape and murder of a young woman on a moving bus in New Delhi in December 2012, recommended the legal proscription of marital rape. It also recognised that the exemption of marital rape “stems from a long outdated notion of marriage which regarded wives as no more than property of their husbands”. The committee, in its report, quite usefully noted that it was the English “common law of coverture that deemed a wife [as] having consented to have intercourse with her husband at his whim”. It is this English common law of coverture that is reflected in the IPC’s exemption of marital rape from its general definition of rape.
It was captured by Sir Matthew Hale in The History of the Pleas of the Crown (1736) in which he writes: “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.”
In 1991, the English House of Lords in Regina v R referred to Hale’s conception of the matrimonial contract while answering in the affirmative the question of law before it — that a husband is criminally liable for raping his wife. Therefore, the colonial power that left us this ipc with its conception of women as chattel has reformed its own laws while we, the colonial subjects, continue to defend this legal exception as being Indian and sacred to the institution of the family.
This is much like our conception of consenting sex between same-sex adults as being ‘unIndian’ as provided for in Section 377 of the same 1860 Penal Code. It is somewhat comical that Independent India’s courts and lawmakers spend their considerable power in defending colonial laws and notions of sexuality and sexual consent by giving it a ‘this-is-Indian-tradition’ twist. Hale, no doubt, would be gratified that at least in the colonies (and now post-colonial countries), his views matched those of the traditional elites.
The argument that the recognition of marital rape will lead to a breakdown of the family is similar to the opposition to equal property rights for women and punishing dowry and domestic violence. In all three scenarios, the institution of the family has endured while Indian women now have rights more in consonance with the constitutional promises of equality, liberty and dignity.
However, there is something more insidious about the battle to not recognise marital rape. It is that as a nation we are not concerned about how children — both boys and girls — are indoctrinated into accepting sexual violence against girls/women as ‘normal’. As we grapple to understand the brutality that women endure — on buses, on the streets and in the workplace — we must confront where those attitudes of brutishness are being formed. One of the points of origin certainly lies within the confines of some homes.
Until we change this behaviour, we cannot claim that the case of the 13-yearold girl travelling on a bus in Punjab, molested and then thrown off the moving vehicle, is an aberration. And until we address the structural reasons for such violence by punishing all rapes — regardless of whether the perpetrator is the legally wedded husband or not — we are all complicit in this child’s abuse and killing.