To Violate with Impunity: Legal Constructions of Marital Rape

Law is one of the important tools through which the state claims to ensure that women are treated as equal citizens. However, literature shows that though, women across India face myriad forms of gender based violence everyday, law has not proved to be an efficient mechanism to control such violence. Further, it is also well documented that not all violence is condemned by the law. One such violence is that of marital sexual assault.  ‘The Protection of Women from Domestic Violence Act 2005’, does include sexual abuse within the definition of domestic violence, yet it does not clearly criminalize marital sexual assault. On the other hand legislations on “rape” including the new Criminal Law Amendemnt Act 2013 continues to uphold legal exemption of “marital rape”. This paper attempts to understand such exemption of “marital rape” from Indian legal lexicon.

Legal constructions of “marital rape” is traced through analysis of legislations on “rape”, observation of cases at two Mahila Police Staitons (All Women's Police Station) at Odisha and through in-depth interviews of legal personnel from Odisha. This paper brings forth how despite campaigns and sensitization by women’s groups patriarchal notions continue to influence legal understanding of “marital rape”. Patriarchal and parochial notions such as “wifely duties”, “marriage as inherent consent to sex” “wife as property”, “divine ordinance” and others are invoked to justify the exemption of “marital rape”. It is argued that, while certain legislation may provide scope for pro-women interpretations to include marital rape, yet given the history of legal interpretations of law in India, such attempts would be far and few. There is therefore, a need to amend the existing laws on sexual assault and bring in a comprehensive legislation against “marital rape”.