Marital Rape and the Debate on Criminalization in India

This Blog is Written by Sushmita Jha, 3rd Year, BBA LLB, SOA National Institute of Law (SNIL), Bhubaneswar.

Introduction: Understanding the Concept of Marital Rape

Hey, so what is marital rape basically? It's basically a husband has non consensual sex with his wife. In most modern legal systems in the world, this is treated as rape since getting married doesn't automatically take away a person's right to say "no." But in India the law is still a mess on this-there's such a loophole that allows a husband to get away with it, if the wife is above a certain age and they are legally married. That exception has led to huge debates among law scholars, activists and even everyday folks. The debate around criminalisation of marital rape raises complex questions about constitutional rights, gender justice, societal norms and what marriage is all about. Supporters of criminalising it have said the exception breaches fundamental rights such as equality, dignity and bodily autonomy. Critics, on the other hand, fear that making it criminal may unmaketh marriages or might be misused by persons in disputes. It's become a huge legal and social debate between the courts, molasters, activists and us as a public.

Perspectives in Constitution and the Case for Criminalisation

Those who wish to criminalise marital rape contend that the exception goes counter to the Constitution's guarantees of equality and personal liberty. The Constitution states that everyone is entitled to live in dignity and bodily integrity. If a wife's consent is not taken into account during marriage, that is, in a way, a violation of her basic rights. The big point is that getting married shouldn't become a legal shield for what would otherwise be crime if done to anybody else. Consent is now at the head of the way we think of sexual autonomy. It has to be voluntary, informed and ongoing. Marriage on its own isn't perpetual consent. Recognising this is key to ensuring that married women continue to control their bodies, and are safe from sexual violence. A lot of legal scholars go as far as to say that retaining the marital rape exception just re-affirms patriarchal (so patriarchial isn't an issue here?) notions that a wife's body is turned over to her husband because they're married. International human rights voices are also driving the debate forward. A bunch of countries have already scrapped marital-rape exceptions because they realise that sex violence within marriage is a violation of basic human rights. People in India wanting reform say if it is not criminalised, the country is lacking on gender justice. They also argue that they want to make it a crime, to send a strong message that you can't use marriage as your cover for violence and coercion. Another large slice is the psychological and physical damage that comes with marital rape. Survivors experience traumatic, anxiety, depressive conditions, and long-term emotional pain. And when the act is not even counted as rape in the criminal law system, victims have a hard time obtaining justice. Pro - criminalisers say that recognising marital rape would enable these survivors to provide to report to abuse and see perpetrators face the consequences.

Concerns and Counterarguments and the Way Forward

Despite strong arguments for criminalisation, there is push back on the idea. Some people concern that the criminalisation of marital rape will be misused in divorce battles or domestic quarrels. They fear that the criminal justice system would have to tread carefully before throwing in a rule that can get twisted. Others say the change may harm the institution of marriage itself. In India, marriage is not just a legal contract, but it is also a cultural and social institution. Critics argue that it could be criminalised, which might encourage fear and distrust and disrupt families. They think that disputes between couples should be ideally settled through counselling, mediation or civil remedies, rather than in criminal courts. Policy folks also point out to the difficulty of proving marital rape in court. Sexual acts between spouses typically occur behind closed doors, with no witnesses. This makes it difficult to collect evidence and raises questions as to how the justice system would go about investigating and being fair for both sides. Pro-criminalisers retort by stating that misuse is a risk with many laws, but it's no excuse for allowing the genuine victim to be unprotected. However, they make the case that the court can establish safeguards and proper investigation procedures and the carrying out of judicial scrutiny in a way to keep the abuse in check and at the same time protect the survivors. They further suggest that it doesn't mean that every marital spat is going to be made into a court case because of a statutory recognition of the crime of marital rape offence; it simply provides a framework for treating serious sexual violence legally. The debate, though, in the end, reflects a larger conflict between the concepts of traditional marriage and newer positions on individual rights. Indian society is gradually beginning to recognise the importance of consent, equality and personal autonomy in close relationships. As these values continue to increase, the legal system may have to reconsider whether the marital-rape exception continues to make sense.

Conclusion

The debate surrounding the criminalisation of marital rape in India is located at the point of convergence of law, culture and the cause of gender justice. One side says the exception is a great attack on the constitutional principles of equality, dignity and integrity of the body. The other side is concerned with misuse of it, evidence hurdles and health of the institution. As Indian society continues to change, the question of marital rape will probably remain at the forefront of transformation of the criminal law. Lawmakers and the courts need to find a way to compromise to safeguard the rights of the individual, but to maintain a fair legal procedure. At the end of the day, any framework should make it very clear that marriage can't excuse a lack of consent, can't excuse lack of bodily autonomy. The result of this debate will determine gender justice and protection of personal autonomy in India for years to come.