Marital rape is rape: Why modern India still won’t accept this

On May 10, 2022, a two-judge bench of the Delhi High Court gave a split ruling on marital rape, thus ensuring a future hearing in the Supreme Court. The legal battles will, of course, continue but this may nevertheless be a good moment to examine the issues that lie behind it.

Obviously, marital rape is rape within marriage. But for most of history and in most parts of the world, such a thing simply did not make sense. Indeed, it could not make sense because the concepts of rape and marriage were seen as mutually exclusive – they could not be brought together.

To understand why this was so, we need to look at marriage. Across the world, and till very recently, marriage has been explicitly treated as being outside the purview of rape. Even in the Western countries that we associate with the more “advanced” practices of gender equality, marital rape was treated as an exception to the crime of rape till the early 1990s. Only the former Soviet Union had marital rape on its statute books soon after its creation in 1922. In the absence of a universal definition, several scholars take marriage to be an institution where a man and a woman live together, have sexual relations and engage in cooperative economic activity.

Others have emphasised the link between marriage and property, or more precisely, the passing on of property from one generation to the next. The dominant form of marriage in the modern West became quite distinctly patriarchal, visible in late 18th-century British law, for instance, whereby a wife became the property of her husband upon marriage. Sexually, economically and legally, she belonged to him. Husbands, therefore, had the right to access their wives sexually, without the question of coercion or consent being on the horizon in the first place. As property, wives had to be protected from the (illegal) sexual access of other men, and here too, their consent was irrelevant.

We can now appreciate why the idea of marital rape simply could not exist, much less become part of criminal law. As one of the first English legal writers on the subject put it, a man can no more rape his wife than he can rape himself. Moreover, sexual intercourse was necessary to “consummate” a marriage, within which, once again, consent was beside the point.

In the long century since feminist voices were first raised, the idea took shape that the dominant institution of marriage needed to be fundamentally rethought, such that, among other significant issues, marital rape was conceivable. For this to be possible, a woman must continue to be a person who can give or withhold consent, even after she consents to be a man’s wife. If what distinguishes the relationship of husband and wife from other relations between men and women is the legitimate expectation of sexual relations, then the introduction of marital rape signals the entry of a new and equally legitimate expectation: A wife’s consent to sexual relations is essential, and in this, she is no different from other women. Husbands no longer enjoy unquestioned rights over the bodies of their wives — this is what it means for a wife to be a person with bodily integrity.

It is strange, indeed, that most parts of the world, India included, became modern while continuing to believe that wives are the property of husbands. Hindu society upgraded prior notions of kanyadaan, the gift of the virgin from father to husband, in which, again, no notion of consent on her part was required. This became the subject of slow reform from the 19th century.

Why is it so hard even for contemporary society to accept that the commitment to marriage between two persons presupposes a kind of mutual respect that cannot include forcing oneself on the married partner? Why, instead, do we hear the opposite, for instance, the government of India’s argument in 2017 that removing the exception of marital rape would “destabilise the institution of marriage”? And why, in the words of the learned High Court judge who upheld the exception clause, should it be far worse to be “ravished by a stranger” than by one’s own life partner?

(The writer is an independent scholar, formerly professor at the Centre for Women’s Development Studies, New Delhi)

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