NEW DELHI LETTER
The debate is highly inflammable in a patriarchal country where the vast majority of marriages are arranged, where very often the future spouses only meet during the ceremony, and where divorce is an exception.
India has been wondering for several weeks regarding the advisability of recognizing marital rape. The subcontinent is among thirty-six countries, including Pakistan, Afghanistan, Bangladesh, Egypt, Algeria and Botswana, that have not criminalized marital rape. One hundred and fifty states, on the other hand, have adopted legislation in this direction to ban non-consensual sexual relations within a couple. Britain acknowledged its illegality in a Sexual Offenses Act in 2003, finding that “Nowadays, it cannot seriously be argued that through marriage, a wife irrevocably submits to sexual intercourse under all circumstances.”
The subject emerged in India during an appeal to the Delhi High Court on January 12, brought by several associations, including RIT Foundation and All India Democratic Women’s Association. Justice must decide when India considered until then that this crime cannot exist within a couple, a woman being presumed to give her tacit and perpetual consent to her husband following having started marital relations.
The rape provisions in Section 375 of the Indian Penal Code, written during the time of the British settlers in 1860, exempts forced sexual intercourse between a husband and wife from prosecution. This article which defines “the crime of rape” sets out the circumstances in which consent has been vitiated and provides that “the sexual intercourse of a man with his own wife, if the wife is over 15, does not constitute rape”.
“Archaic”, “arbitrary”
The associations contest this exception and claim that it is unconstitutional and contrary to the fundamental rights of women. A provision denounced by lawyers as “archaic”, “arbitrary” giving primacy to the institution of marriage over individuals.
The case has sparked dismay from men’s rights groups opposed to any change, who argue that acknowledging marital rape would turn husbands into “rapists” and lead to nothing less than violence. collapse of the institution of the family. They called on social networks for a “marriage strike”! The argument of the destabilization of the institution of marriage is not the prerogative of these groups, it is also put forward by the government.
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