What is marital rape?

Marital rape refers to sexual intercourse between a husband and wife without the wife's consent. It is a form of violence against women that is often ignored or trivialized due to the belief that marriage implies the consent of the wife to sexual activity with her husband.

It can have long-lasting physical and psychological consequences for the survivor, including trauma, depression, anxiety, and other mental health issues. Marital rape is recognized as a form of violence against women and a human rights violation by many international human rights organizations. However, it is still not criminalized in many countries, including some that have laws criminalizing rape in other contexts.

The Hindu Marriage Act, of 1955, does not specifically recognize the concept of marital rape. The act does not provide any legal protection to women who are subjected to sexual violence by their husbands." Section 9 of the Hindu Marriage Act deals with the restitution of conjugal rights.

However, this provision has been criticized for perpetuating patriarchal norms and violating the fundamental right to privacy and personal liberty of the spouse who has left the matrimonial home." Section 13 of the act deals with divorce, and it provides several grounds for divorce, including cruelty, adultery, and desertion. However, the act does not include marital rape as a ground for divorce.

In recent years, there have been several attempts to introduce legal reforms to recognize marital rape as a criminal offense and provide legal protection to women who are subjected to sexual violence by their husbands. However, these efforts have faced opposition from some quarters, citing cultural and traditional norms.

In 2016, the Women and Child Development minister Maneka Gandhi, in her written reply, said that the concept of marital rape cannot be applied in India due to various factors like level of education or illiteracy, poverty, myriad social customs and values, religious beliefs, and the mindset of the society to treat marriage as a sacrament.[1]

How Marital Rape Intersects with Gender Inequality

Marital rape is a manifestation of gender inequality and reflects the unequal power dynamics between men and women in society.

Firstly, marital rape is a manifestation of the power dynamic between men and women within a marriage. Historically, women have been viewed as the property of men, and marriage has been seen as a transfer of ownership from a woman's father to her husband. This belief has led to the notion that a man has the right to engage in sexual activities with his wife, regardless of her consent. Such a belief reinforces gender inequality, as it reinforces the idea that men have the right to dominate women, both sexually and otherwise.

For example, in some countries, marriage is considered a contract, which gives men the right to have sexual intercourse with their wives without their consent. In such cases, the law is designed to protect men's rights rather than women's rights, perpetuating gender inequality.

Secondly, gender inequality often makes it difficult for women to seek legal [2]recourse when they experience marital rape. Due to social and cultural norms, women may not speak out against their husbands. Furthermore, the legal system may not recognize marital rape as a crime, making it challenging for women to seek justice.

Thirdly, gender inequality in terms of economic and social power often makes it challenging for women to leave abusive marriages, including those involving marital rape. In many cases, women may be financially dependent on their husbands and may not have the means to leave the marriage.

Furthermore, social norms may make it difficult for women to leave their marriages, as divorce may be stigmatized in their communities. Finally, marital rape is a manifestation of gender inequality, which perpetuates the power imbalance between men and women in relationships and needs to be addressed.

Looking forward into Feminist Perspective:
The feminist perspective on marital rape is centered around the idea that sexual violence within marriage is a form of gender-based violence that perpetuates the power imbalance between men and women. From a feminist perspective, women should have control over their own bodies and have the right to choose when and with whom they engage in sexual activities.

In contrast, the Indian situation is complex, as the issue of marital rape is still largely ignored and stigmatized in the country. India's patriarchal society has long ignored the issue of sexual violence within marriage, and there is a lack of legal protection for women who experience marital rape. India's legal system does not recognize marital rape as a criminal offense, and there are no laws in place to protect women from it.

Furthermore, cultural and social norms in India often place a significant burden on women to maintain the sanctity of marriage, even at the cost of their own well-being. Women who speak out against their husbands may be ostracized and face social stigma, making it challenging for them to seek legal and social support.

However, there is a growing feminist movement in India that is challenging the cultural and legal norms that perpetuate gender inequality and violence against women, including marital rape. Feminist organizations in India have been working to raise awareness about the issue of marital rape and to advocate for legal and social protections for women who experience it. Some examples of feminist movements and organizations in India that are working to address the issue of marital rape.

The Pinjra Tod movement, a student-led feminist collective that began in Delhi in 2015, aims to challenge the patriarchal norms that limit women's freedom and mobility, both inside and outside of educational institutions. The group has been active in protesting against sexual harassment and violence, including marital rape; the "One Billion Rising" Campaign is a global movement that aims to end violence against women and girls; the "Majlis Legal Centre" is a feminist legal aid and advocacy organisation based in Mumbai. The organisation provides legal support to women who have experienced violence and discrimination, including marital rape. The Majlis Legal Centre has been actively involved in advocating for legal reform to recognise marital rape as a criminal offence in India.

The Other Facet:
There are several views against the criminalization of marital rape in India, and they are based on cultural, legal, and social factors. Those who oppose the criminalization of marital rape argue that it is a private matter, the law could be misused, the concept of marital rape goes against Indian culture and values, it is difficult to prove, and existing laws related to domestic violence are sufficient. Some people believe that what happens within a marriage is private, and the government should not intervene in such matters. They view marriage as a sacred institution that should be free from government interference.

Secondly, some opponents argue that the law could be misused by women to falsely accuse their husbands of rape for personal gain, such as gaining leverage in divorce or custody battles. They view this as a potential risk, especially in a society where false allegations against men are not uncommon. They fear that criminalising marital rape would be used as a tool to falsely accuse men, leading to unwarranted legal action and punishment.

Thirdly, some opponents argue that it is difficult to prove marital rape because there is no physical evidence and the crime often happens behind closed doors. They believe that criminalising marital rape would create unnecessary legal complications.

They argue that the legal system should focus on crimes that are easier to prove and leave the private sphere untouched. Finally, some people argue that existing laws related to domestic violence are sufficient to protect women from abuse, including sexual abuse.[3] They believe that these laws are comprehensive and cover all aspects of domestic violence.

Conclusion:
Marital rape is a serious issue that requires legal and social attention in India. The prevalence of marital rape in India highlights the need to challenge traditional gender roles and promote gender equality. This issue in India requires a comprehensive approach that addresses the root causes of gender inequality and promotes the rights of women. By challenging cultural and legal norms that perpetuate gender inequality, India can take an important step towards promoting gender equality and ending sexual violence within marriages.

Feminist perspectives have been instrumental in raising awareness about the issue of marital rape and advocating for legal reforms to criminalize it. However, there is still a long way to go in terms of changing cultural and social norms that perpetuate gender inequality and accept marital rape as a private matter.

In conclusion, the issue of marital rape intersects with gender inequality and feminism, and addressing it requires a comprehensive approach that challenges patriarchal structures and promotes gender equality. By working towards this goal, we can create a society where women are safe, empowered, and treated with dignity and respect.

End-Notes:

1. Outlook, https://www.outlookindia.com/national/supreme-court-s-judgment-on-marital-rape-what-has-been-the-discussion-so-far-news-226703.
2. Raveena Rao Kallakuru & Pradyumna Soni , Criminalisation Of Marital Rape In India:
   Understanding Its Constitutional, Cultural And Legal Impact (2018).
3. Mridull Thaplu, Marital Rape: - Need For Its Criminalisation In India , 12-13 (2020)