Welham Girls' School

Article 375 of the Indian Penal Code describes rape as ‘sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age.’ (This description omits many details that define specific words in the IPC for the sake of brevity.) A major exception to this definition is that sexual intercourse performed by a man with his own wife will only be considered rape if the wife is below fifteen years of age. A cursory reading of this characterisation brings to light a major issue of contention– marital rape; defined by as unwanted intercourse by a man with his wife obtained by force, threat of force or physical violence, or when she is unable to give consent. In 2016, the Union government had rejected the very concept of marital rape, saying that it ‘cannot be applied to the Indian context’ (sic.) because of the ‘mindset of society to treat marriage as a sacrament.’ We argue, therefore, that a better understanding of spousal rape requires a radical change in our treatment of the insitution of marriage itself– which requires, again, an examination of the nature of our patriarchal society, and how it ties women as ‘property’ to their husbands– sexually, economically, and indeed even legally. Section 9 of the Hindu Marriage Act, 1955 talks about the concept of restitution (a bombastic term for restoring something that was lost or stolen) of conjugal rights (that is, rights created by the virtue of marriage.) Section 9 and Section 22 of the Special Marriage Act, 1954, state that a spouse has the power to move to the district court if one of the spouses has ‘withdrawn’ from the marriage without a ‘reasonable cause.’ And of course, since sexual assault in marriage is not counted as assault at all, the act is also enforceable in the case that a victim of rape decides to leave their partner, effectively forcing them to live with their perpetrator. In most cases, although the law is gender neutral, it statistically affects women in larger numbers. In a previous series of judgements, the Indian courts upheld the restitution of conjugal rights by stating that “a wife’s first duty is to her husband and is to submit herself obediently to his authority and to remain under his roof and protection.” It is disillusioning to see such regressive stands being taken by the very establishment that can be moved to ensure real justice, liberty, and equality– the three ideals that are enshrined in the ambitious Preamble of our nation.