Get Inspired, Be Empowered Forums Sexism & Patriarchy Why is Martial Rape Legal in India? Reply To: Why is Martial Rape Legal in India?

Manpreet Singh
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In 2021, India still remains one of 36 countries where it is not a crime for a man to rape a woman, the defence being as long as they are married. This exception features in Section 375 of the Indian Penal Code. Exception 2 to Section 375 exempts unwilling sexual intercourse with a wife over fifteen years of age from this definition of rape, making it legal for men to rape women — who happen to be their wives, aged 15 and above. Most countries in the world recognize that rape is rape, period. So, what’s holding India? A careful analysis points to the outdated IPC influenced by back the Victorian era and a rigid patriarchal society mixed with India’s religions which suppresses women’s voices. Our culture, where marriage and family, still hold utmost significance as the building blocks of society. The most difficult obstacle in the way of criminalizing marital rape is none other than the Union Government itself. There are several writ petitions before the Supreme Court and high courts, filed by individuals challenging the marital rape exemption to Section 375, but the government has continued to shield men who rape their wives by citing the same few reasons repeatedly. One critical glance is all it takes to break the reasons down to their barebones: misogyny and misconceptions.

Former Chief Justice of India Dipak Misra, debating in the favour said, it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values,”. Here, the basis of this argument is that it works in the West due to stark cultural and socio-economic differences between the two regions.
The government is arguing that since a majority of people in India are illiterate, uneducated, poor, they believe that a husband cannot rape his wife because a good Indian wife will dutifully consent to her husband forever. The fear of marriages falling apart that is stopping the government from criminalizing marital rape. At which point it becomes important to ask: by placing so much value on marriages and family and pushing for status quo, whose rights is the government protecting? The husbands raping or the wives being raped?

In Independent Though v. Union of India, the Court specifically explained that marriage is personal and nothing short of the Indian State criminalizing marriage itself can destroy the institution of marriage. It said if divorce and judicial separation have not destroyed the institution of marriage, criminalizing marital rape certainly can not either.

If criminalizing the violent rape of two-third of married Indian women destabilizes the institute of marriage and family, then so be it, but the tome is right when we should be more focused about the fundamental rights of our women in society.