The Choice between Patriarchy and Women’s Dignity

I. Introduction

It is not an unknown fact that most women in India do not feel safe in the streets; there is a constant fear raging among each woman with the growing cases of rape and sexual harassment. If the fear from outsiders wasn’t enough, now a woman needs to even fear the same in her bedroom from her husband? The debate around the legality of marital rape is not a new thing; it has been going on but is being ignored by the lawmakers of the country, giving reasons which do not seem too reasonable.

II. Marriage is a sacred institu-tion that has no place for rape

This is one of the reasons the lawmakers gave and is also the belief of many Indian families where “Pati” or husband is considered “Parmeshwar” or God. And the moment when you consider a human being equivalent to God, the problem starts. This notion has absolved many husbands in India of all the wrong they do to their wives who have assumed that if they’re being wronged, it is because they deserve this; after all, God cannot be wrong. It is a reality in India that marriage becomes the hub for religious sentiments and faith, all the rituals are closely followed, and if any ritual or tradition is missed or done in the wrong way, it is considered an omen of something to be scared about. And when so many religious sentiments are involved along with so many rituals, most of the rituals in the favour or the benefit of the groom, how can you expect that the same society would accept that the same guy who is like a god to his wife would commit a sin like rape to the same wife? It is not a surprise to expect the same society who follows rituals and traditions revolving around their husbands to look at their husbands in a bad light. But it needs to be understood that husbands are human beings and human beings are capable of committing crimes that are a danger to society.

The exemption of marital rape was first laid down by Sir Matthew Hale, who said that:

“But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself up in this kind unto her husband which she cannot retract.”²

This statement by Sir Matthew Hale clearly demonstrates the autonomy a husband holds regarding his wife’s body, and it is considered that the wife gives her husband the right to sex when she marries him.

In the case of R. v Miller (1954),³ it was said by Lynskey, J

“Although the husband has a right to marital intercourse, and the wife cannot refuse her consent, and although if he does have intercourse against her actual will, it is not rape, nevertheless he is not entitled to use force or violence for the purpose of exercising that right.”⁴

These statements make it clear how, since the beginning, men have put themselves upon this pedestal, claiming their superiority over women and consciously or unconsciously, women have also contributed to this dominance that men exert over women.

The notion that after marriage, a husband has every right of his wife was not just in India but in the whole world; India is just still following that notion while other countries have discarded the notion and did the needful. It is interesting to think about how come to the definition of rape changes for a husband because according to Section 375 of The Indian Penal Code if the man is not the woman’s husband, he will be charged under Section 375, but husbands receive a special immunity just because of the foundation of marriage. In recent cases like Dilip Pandey vs the State Of Chhattisgarh⁵, it was held that even though it was against the will of the wife or by force, marital rape is not illegal. It is surprising to realize how problematic the statement sounds and how the lawmakers of our country can not realize the wrong that is happening under the sanctity of marriage. It really makes sense why people do not react when a husband is beating his wife in public. Most people just make an excuse saying it is their private matter, but the reality is that there is an internalized notion within all of us that a husband has the right towards his wife’s body; he can do anything with it, ANYTHING. If that does not scare the lawmakers of our country, the blind public who refuses to question the sanctity of the marriage even if someone’s life is in danger, then I do not know what the future holds for the women of our country.

“The hegemonic ideas of not touching the marital institution are based on those conveyed by the Manusmriti; besides, these amplify the principles laid down during the Victorian era. Rather, denying sex, according to traditional religious beliefs and personal law codes, goes against the paradigm of the duties of an `ideal wife’. This logic fails to recognize the fact that marital rape is an extreme form of sexual violence. It is a violation of the trust and sanctity in a relationship; besides, it also overlooks the fundamental principle of women’s bodily integrity. This rationality fails to address the structural inequalities inherent in the system and indoctrinate the acceptability of sexual violence against women as `normal’.”⁶

The lawmakers of our country need to understand that their main duty is to protect the citizens of the country, even from the family members, even from the husband. If cruelty against a wife by husband and his family members is punishable by law, then why is marital rape not considered cruelty? Why is marital rape not considered an attack on the modesty and dignity of the wife? Why is marital rape still legal when it goes against the basic principles of the constitution of India in Article 14 and Article 21? Does the institution of marriage weigh more than the constitution of India? If it does not, then why are the lawmakers of our country still hesitant and against the criminalization of marital rape?

For now, it seems that indeed the protection of the institution of marriage is more important than the protection of those wives who suffer every day and cannot voice out their pain due to lack of legal recourse. It is sadder than all those wives who have the courage to call out the wrong and are ready to fight the patriarchy and want to own themselves cannot due to no support from the law-making body of our country.

“Laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of the marital relationship which is totally against basic human rights. If a woman consents to be married, it does not mean that she consents to be raped by her husband. She also has her entity, and the line drawn between rape within marriage and rape outside marriage is outdated and has no relevance in the present scenario.”⁷

III. Lack of trust in the execut-ive and judiciary of the country?

Another major reason that is commonly given to prevent the criminalization of Marital Rape is that women might file false cases against men like they do in domestic violence and dowry-related cases, and it seems that the people who use this reason to prevent the criminalization of Marital rape are doubtful about the competence of the executive and judiciary who have the responsibility to efficiently decide the investigation and judgment of the case. Our executive is competent to investigate and find the reality and authenticity of the complaint filed by the wife. And if the judicial process of our country, which undergoes so many formalities before deciding on a case, do the women of our country have the liberty and support from their families in a false case where most of the Indian families still consider a decision like a divorce a taboo? Do women want to go through it just to malign the image of their husbands for the sake of revenge?

It seems highly uncommon that in Indian families where the daughter’s parents just teach her to tolerate and continue her marriage despite anything, where the society does not leave a chance to taunt and malign the character of the woman in any matter, will a woman who has a false story be able to sustain through the society and then through the judicial proceedings, for that matter? Nobody denies the fact that false cases of dowry and domestic violence do not happen, they happen, but that does not mean that the people who face it in reality and deserve justice would be deprived of that because of some people with ulterior motives. Everyone deserves justice, and it is wrong to deprive a section of society to deprive them of their rights because of something that has not happened and is just an assumption.

IV. Conclusion

There is no doubt that just criminalization of marital rape would not solve all the problems of women of the country; there is a long road ahead, there are a lot of problems even after the criminalization of marital rape, rape victims are still deprived of their right to live with dignity by the society, people still question them, taunt them at every point of their lives. Divorced women are looked upon as characterless or selfish just because they stand for their self-respect. Daughters in this country are still taught and given the responsibility to mend the marriage even after tolerating abuse. Though, awareness regarding marital rape is increasing, which is shown in the judgments like Nimeshbhai Bharatbhai Desai -v- The state of Gujrat⁸ where the judge regarded marital rape as wrong and should be criminalized, and the case of X vs X⁹ where the judge considered marital rape as a ground for divorce. In the case of Thought Independent vs Union of India¹⁰, marital rape is criminalized for a minor wife aged under 18 years but older than 15 years, but nothing has been done about the wife above 18 years. It is a change because earlier, the judges did not even consider marital rape as wrong, but clearly, the change is coming, and hopefully, we will achieve the goal of creating India, a safe country for women.

*****

Footnotes

1. Author is a B.B.A. LL.B. student at O.P. Jindal Global University, India.

2. PLEAS OF THE CROWN 629 (1847) ↩

3. R. v Miller, (1954) 2 AII WR 529 ↩

4. Ibid ↩

5. Dilip Pandey vs State Of Chhattisgarh CRR/117/2021 ↩

6. Nigam, Shalu, The Social and Legal Paradox Relating to Marital Rape in India: Addressing Structural Inequalities (June 2, 2015). Available at SSRN: https://ssrn.com/abstract=2613447 or http://dx.doi.org/10.2139/ssrn.2613447 ↩

7. Pandey, Pradeep Kumar. "Marital Rape in India-Needs Legal Recognition." Available at SSRN 2290027 (2013). ↩

8. Nimeshbhai Bharatbhai Desai -v- State of Gujrat 2018 SCC Online Guj 732 ↩

9. X vs. X MAT.APPEAL NO. 151 OF 2015 ↩

10. Thought Independent vs. Union of India (2017) 10 SCC 800 ↩