Dear Indian women, leave your fundamental rights at the wedding altar

File photo of a Hindu marriage ceremony | Representational image | Pixabay

The Indian government has just proved that women are safer outside a marriage than within one. The centre’s recent stance on marital rape is disappointing to millions of Indian women, but wholly unsurprising. The NDA is neither the first nor will it be the last government to fail Indian women.

This most recent blow comes from the Union Ministry of Home Affairs. It filed an affidavit in the Supreme Court, which is reviewing petitions challenging the constitutionality of the marital rape exception under Section 375 of the Indian Penal Code. The affidavit asserted that labelling marital rape as a criminal offence was “excessively harsh” and could destabilise the institution of marriage.

Let’s unpack some of its more troubling assertions. The government emphasised that this issue requires a “comprehensive approach” that originates from legislative bodies rather than judicial intervention, citing potential socio-legal implications. In marriage, states the affidavit, “there exists a continuing expectation, by either of the spouses, to have reasonable sexual access from the other”, while clarifying these expectations do not entitle the husband to force his wife into sex against her will. It also contended that “…the sexual aspect is but one of the many facets of the relationships between husband and wife, on which the bedrock of their marriage rests.” The affidavit also expressed concerns about the potential misuse of laws and highlighted that such a change could disrupt conjugal relationships.

There’s plenty in there to rail against, but for a moment, let’s focus on the language the centre used to put forward its argument about the “sexual aspect”. Where have we heard this argument before? You might remember it from the time the Karnataka High Court upheld the hijab ban, arguing that it isn’t an essential practice of Islam—and individual consent could take a hike. Now the same flawed logic is applied to marital rape, as if consent becomes optional once you’ve signed a marriage certificate. But using the essentiality doctrine to cherry-pick which practices are core to an institution cannot justify trampling on individual rights.

The implications of this stance are far-reaching and deeply concerning. This begs the question: Whose individual rights are important? Who is worthy of protection from excessive harshness? What “comprehensive approach” do we need around consent within a marriage, when we don’t need one outside it? And what about the inherent misogyny that believes such a law will be misused by women because no man ever has misused any law?

How have we arrived in 2024, where summarily divorcing your wife can land you in jail, but sexually assaulting her will not?

Stark irony

The fight to criminalise marital rape in India is rooted in the 17th-century Doctrine of Hale, which treated women as property of their husbands upon marriage. This archaic British legal principle has been overturned in the UK, but even 300 years later, continues to dangle over the necks of Indian women. In 2012, the Justice Verma Committee, instituted in the wake of the Delhi gang rape, recommended that the marital rape exception be removed. The then-Congress government had opposed it, citing concerns about the “sanctity of marriage”, and the current BJP-led government maintains this stance—divided by party lines, united in turning a blind eye to the sanctity of a woman’s bodily autonomy.

While several Opposition leaders have now labelled the centre’s arguments regressive, these views have been echoed by the BJP for years now. In 2015, Haribhai Parthibhai Chaudhary, Minister of State for Home Affairs said in a written statement that “the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context.” The reasons were illiteracy, poverty, and religious beliefs. The following year, Minister for Women and Child Development Maneka Gandhi—well known for her tireless activism for Indian stray dogs—regurgitated the same claims.

Maybe I’m mistaken, but I’ve never witnessed illiteracy, poverty or religious beliefs being trotted out as reasons to not undertake large-scale social projects. Did illiteracy stop the widespread implementation of Aadhaar? Or did poverty prevent the government from demonetising currency? Or did religious beliefs come in the way of announcing overnight lockdowns during Covid-19? Why then, are married Indian women—but not Indian men—asked to worry about the sanctity of marriage when it comes to sexual consent?

Despite this entrenched resistance, there have been glimmers of hope in recent years. High courts in many parts of India have displayed exceptional courage in recognising the constitutional rights of married women. In 2018, the Gujarat High Court, while hearing a case of a man accused of rape and domestic violence by his wife, asserted that marital rape “ought to be a crime and not a concept.” The Kerala High Court’s 2021 ruling, in a case where a woman sought divorce on grounds of marital rape, recognised such acts as valid grounds for marital dissolution. Yet, the Supreme Court’s 2022 stay on a Karnataka High Court order—which had refused to quash charges against a man accused of brutally raping his wife—underscores the ongoing legal ambiguity.

The irony is stark: While the centre opposes criminalising marital rape, its own data from the National Family Health Survey (NFHS-5) reveals that about 30 per cent of women in India have experienced spousal violence—and 6 per cent of women have experienced sexual violence from their husbands. That’s millions of women, their voices silenced by institutions meant to protect them—and these are just the reported cases.

The sanctity of marriage

While India clings to its Colonial-era laws, much of the world has moved on. The UK criminalised marital rape in 1991, and Bhutan and Nepal beat us to it in 2004 and 2006. Even Pakistan, often the yardstick against which we measure our progress, recognised marital rape as a form of domestic violence in 2006. Across the border, we’ve criminalised domestic violence and outlawed dowry (much to the unhappiness of Men’s Rights Activists), but somehow, we can’t bring ourselves to say that forcing sex on an unwilling spouse is a crime.

These already disturbing contradictions reach a most sinister apotheosis where child marriage intersects with marital rape. In a landmark ruling in 2017, the Supreme Court upheld the age of consent as 18 years. Instead of paving the path for criminalising marital rape, the government’s stance revealed a disturbing disconnect. It held that child marriage is illegal but also a persistent “social reality”, which creates a judicial grey area where underage brides, who cannot legally consent to sex, are left without protection from sexual abuse within these marriages. And the government’s refusal to criminalise such acts, which might “destabilise” these unions, is an illustration of where its priorities lie—in preserving marriage over the safety and rights of young girls.

We are striding into 2025 with aspirations to become the “Mother of Democracy” and a five-trillion-dollar economy but with a complete lack of comprehension of consent. These grand visions ring hollow when half our population is expected to leave their fundamental rights as soon as they stand at the wedding altar and at the threshold of their marital homes. After all, nothing screams “vibrant democracy” quite like telling a third of your female population that their bodies are no longer their own once they’re married.

What use do Indian women have for the “sanctity of marriage” when it tramples on our constitutional rights? If this is what “Sabka Vikas” looks like, maybe it’s time to ask: Vikas for whom, exactly? And at what cost?

(Edited by Theres Sudeep)