In a recent verdict, the Chhattisgarh High Court has stated that since sexual acts between a man and his adult wife do not constitute rape, any ‘unnatural sexual act’ — as defined under Section 377 of the Indian Penal Code — committed by the husband cannot be treated as an offence. The court’s judgment — passed while acquitting a man convicted of killing his wife as a result of a coerced sexual act — relied on Exception II of Section 375 of the IPC, which does not recognise marital rape as an offence. The exemption is based on the regressive belief that consent for sex is implicit in a marital arrangement and that a wife cannot retract it later. But such an assumption is primitive and asymmetrical in favour of men. Equating consent for marriage with consent for sexual intercourse whenever the man pleases undermines a woman’s bodily autonomy, freedom, and fundamental right to privacy. Tellingly, the State’s reading of such matters is far from enlightened. The blatant disregard for the need to recognise the spectre of marital rape has been endorsed by the Centre on the grounds that it would be “excessively harsh” and “disproportionate” to call the sexual violation of an adult wife by her husband rape because this could shake the moorings of marriage as a societal institution.
The government’s conservative position may have been consistent; but this is not true of the courts. For instance, the Gujarat High Court, while hearing a case on marital rape, condemned society’s value system that forces women to remain silent even in personal spaces that endanger them. This is borne out by data. The National Family Health Survey-5 revealed that one-third of all Indian women have experienced physical or sexual violence in their marriages but 77% of them have never sought help or told anyone about it. It is also unsurprising that according to the same survey, one in five Indian women feels that she cannot refuse sex to her husband and 34% of men find it unacceptable if their wives turn down sexual advances. Marriage, ideally, should be an equal partnership between two individuals. But societal and institutional prioritisation of a man’s conjugal rights over a woman’s consent effectively erodes marriage’s egalitarian character. The debate on marital violence and rape must begin in right earnest in India. It is hoped that India’s courts, the beacons of progressive sensibility, would be central to the conversation.
