Confronting an undefined crime

Just days before his retirement, the Chief Justice of India D Y Chandrachud recused himself from hearing the case on the criminalisation of marital rape, citing the uncertainty of its conclusion in the foreseeable future. This move highlights the long and complex legal journey ahead for the case. While the public debate over the issue has sparked intense reactions, the discomfort from the ruling National Democratic Alliance (NDA) government is palpable. Currently, Indian law exempts the husband from rape charges if the spouse is over the age of 18, reinforcing an outdated notion that marriage implies consent. Many critics argue that this law is a remnant of colonial-era legislation, reflecting the traditional view that a wife is subordinate to her husband, particularly in sexual matters. The roots of this exemption lie not only in colonial law but also in deep-seated cultural and religious traditions. Ancient texts like the Manusmriti emphasise the subjugation of women, prescribing a secondary role for them within marriage. Despite the progress women have made in various fields, patriarchal norms remain deeply entrenched in Indian society, making any move to criminalise marital rape highly contentious.

For the BJP-led NDA, maintaining traditional family values is crucial, and these values are deeply intertwined with belief systems where marriage is viewed as a sacred institution – there are distinct roles for husband and wife, with the husband traditionally holding a position of authority. Religious leaders, irrespective of faith, view any law criminalising marital rape as a threat to this structure. Many fear that such a law would challenge male authority within the household, potentially destabilising the family unit, which is seen as the cornerstone of Indian society. While India and many other conservative nations in the Middle East and parts of Africa continue to grapple with the concept of marital rape, several developed countries have taken progressive steps to criminalise it. In the United States, marital rape was criminalised in the late 20th century. Countries such as the United Kingdom, Canada, and Australia have also followed suit, affirming that marriage offers no immunity from prosecution for sexual violence. In these nations, the criminalisation of marital rape reflects a growing recognition of individual autonomy and bodily integrity, irrespective of marital status. Feminist scholars like Catharine MacKinnon have long argued that failing to criminalise marital rape normalises the idea that marriage grants a licence for sexual coercion, a view echoed by Indian feminists today.

Stigma and social compulsions

In India, however, marriage is often regarded as the bedrock of society, with women seen as duty-bound to satisfy their husbands’ sexual desires. This perspective makes it difficult for many to view marital rape as a crime. The stigma attached to divorce and the pressure to preserve family honour further deter women from coming forward to report sexual violence within marriage. Religious leaders and traditionalists also cite concerns about the potential misuse of a marital rape law by women, which they claim could lead to a breakdown of marriages. Additionally, they argue that proving marital rape in court would be challenging, raising concerns about the fairness of prosecution.

Feminists, however, view the criminalisation of marital rape as essential to dismantling the patriarchal control within the household. Scholars like Judith Butler have argued that the refusal to recognise non-consensual sex within marriage as a crime perpetuates a legal system that reinforces societal hierarchies, treating women as property. Feminists argue that enforcing marital rape laws would not erode the sanctity of marriage but rather promote more equitable and respectful partnerships.

While religious views on marriage dominate much of the resistance to criminalising marital rape, the issue must ultimately be framed in terms of legal rights and human dignity. Although the criminalisation of marital rape in India remains a deeply contentious issue, complicated by legal, cultural, and religious factors, there may be room for negotiation in addressing these challenges. A phased approach that includes comprehensive legal reforms and public awareness campaigns could gradually shift societal attitudes. Over time, the law can evolve to reflect the individuals’ rights to bodily autonomy and consent, even within marriage.

There is no denying that the feminist approach offers a pathway toward justice, challenging the entrenched patriarchy and advocating for gender equality in one of the most intimate spheres of human life – the marital relationship. By confronting the intersection of law, culture, and feminism, India can move toward a more just and equitable future, where marriage no longer serves as a shield for sexual violence and where consent remains at the heart of all relationships. Is India ready for such a radical shift?

(The writer is a Professor and Dean, Christ deemed to be university, Bengaluru)