Governance · Law · Public Policy

Marital Rape: An Oxymoron?

“What is marital rape?” my sister enquired even before I had opened my eyes. It was 7:09 am sharp. She had a newspaper in her hand and a big question mark on her face.

“Good morning”, I said.

“Forget that, answer me”, she retorted back. “It’s a type of rape”, I said. The question mark now transcended into annoyance. “So it’s a rape, right?” She was adamant “Yeah, of course it’s a rape”. “It’s not treated as one”, she said and barged out of the room. She is 16 and she was miffed. I could not really get a sense of what she was trying to imply; I was hardly out of my slumber. But her annoyance was enough to have woken me up. I went to her and asked what she was up to which she replied that I should read the newspaper. The newspaper headline shouted-“Marital rape not to be criminalized”.

I was starting to get a sense of what my sibling must have been feeling. It is a rape, whether married or not; it is an offence, married or not. I was borderline furious. “Exactly”, she said.

Evidently, Haribhai Chaudhary didn’t really agree with the both of us. And so did many others.

Section 375 if the IPC (Indian Penal Code) says that it is not a rape if its intercourse between husband and wife, when the wife is not younger than 15 years. On reading further onto the matter it became clear why. Because marriage is a type of contract and by the virtue of it, it is presumed consent. As appalling as it sounds, it is considered to be true. If I were to infer from this marriage gives you a license to rape your wife. A woman’s role has traditionally been assumed to be submissive and docile and hence sex becomes obligatory. If she refuses to indulge in the same, she is beaten up and forced into it. But that’s okay right? She signed up for it. The husband has a license to rape after all. My conjecture can be traced back to statements by Sir Matthew Hale, Chief Justice of England during 1600’s that says “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 in kind to the husband whom she cannot retract.”

I had never wished to be born in the 17th century, for I am too much in love with the internet. But yesterday I did. Had I been alive that time, I surely would have asked him if the lawful wife was duly informed about the clauses in the contract wherein it mentioned that if she refrained, because of whatever reason, the husband has full liberty to jump on her and exercise his right. The lawful wife, I suppose would have been as much in love with her liberty that time as I am today. But that was the 17thcentury. Times have changed .Not so much though.

H.P Chaudhary said in a written statement to the parliament that the concept of marital rape cannot be applied in the Indian context and attributed the factors to illiteracy, poverty, myriad social customs and values. Marriage is a sacrament, he pointed. “Only had it been true”, I thought. So indirectly marriage gives immunity to men. The law protects the immunity .I really shouldn’t have read the newspaper today; bad start to the day, popped into my mind. That wouldn’t have changed the scenario though.

What will actually change it, is the fact that marital rape should be considered a rape because the operative word here isn’t ‘marital’ it is the latter. Just as I was done reading, my sister appeared yet again with another question.

“Isn’t it an oxymoron, ‘marital rape’?”

If nothing, her vocabulary is getting better.

About the Author

IMG_20150329_110823Anushka Sachdev is currently pursuing B.A. LL.B. (Hons.) from National Law University, Delhi. An ardent reader, she has a diploma in Bharatnatyam and is also a competitive swimmer. She is actively involved in a number of projects in college and has always been interested in conducting research on various aspects of law in India. She is currently interning with the Model Governance Foundation.

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