India is one of just 36 countries that do not criminalise marital rape. Section 375 of the Indian Penal Code, which defines rapes, makes an exception for marital rape by stating, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” In 2018, the Supreme Court of India issued a ruling that raised this age from 15 to 18 (the age of consent in India).
This marital "immunity" is a holdover from the times of British rule. Many former British colonies adopted the British common law system, which includes Sir Matthew Hale’s "Implied Consent Theory.” Hale, an English lawyer from the 1600s, wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”
Last year, the Central Government of India argued that marital rape should not be criminalised as it would destabilise the "institution of marriage.” The Indian government added that criminalising marital rape could become an “easy tool for harassing husbands" - reasserting the notion that women who report sexual assault cannot be trusted.
Despite numerous petitions, the Supreme Court refuses to amend the law. Instead, rape-marriage - where unmarried rape victims marry their abusers - is a common solution to rape outside of marriage proposed by many Indian courts.
Rape is rape regardless of whether the woman is married to her rapist or not.
Written by Anushree Appandairajan
Artwork by Zara Masood
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