Herald View: Outlaw all forms of marital violence, not just sex without consent

The split verdict of the Delhi High Court on marital rape is completely reflective of how society, and not just the orthodox one in India, has been split down the middle over the ages on the issue. Men from all cultures have considered violating a woman against her consent their basic God-given right.

The concept of marital rape not being a crime, as with every law in this country, can be traced back to British colonial times and was equally applicable to India as to the United States under the same British concept of the ‘Common Law’. According to this 17th century law, a woman had no right to object to marital rape as by consenting to marry a particular man, she had foregone all further rights within the marriage. While eventually all 50 of the American states had outlawed marital rape between the 1970s and 1980s, strangely it continued as a practice in the United Kingdom until 1991 when the House of Lords overturned the Common Law exemption (an exemption in the case of marital rape also granted to Indian men) and upheld the conviction of rape against the husband in the case of ‘R versus R’ when several appeals to various courts failed to come to any specific conclusion. Overturning the treatise of Sir Matthew Hale, Chief Justice of the King’s Court of England in the 18th century that specific consent within a marriage was not required by a man to have conjugal relations with his wife, in 1992, Lord Justice-General Lord George Emslie said, “Nowadays it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse under all circumstances.”

Right. The law is now applicable to both rape within marriage and rape within livein relationships, a woman’s consent being a necessary corollary of conjugal relations.

Given how the British courts remained undecided for long over the exemption in case of marital rape, it is not surprising that the judges of the Delhi High Court were clear that the burden of outlawing marital rape cannot be pushed on to the courts. The Central government must legislate on the matter and it is heartening to see that they have already initiated consultations with various State governments in this regard. But one has to emphasise certain caveats. Outlawing marital rape without taking similar action against general violence against women within marriages would be a meaningless exercise. There are millions of women within marriages who have suffered broken bones and bruised bodies without ever having been subjected to physical penetration by their husbands. So any law must take into consideration the specifics of not just marital rape but the various ways this rape can take place.

There is also serious concern among men that a law against marital rape could be used against husbands by wives who have simply become disenchanted with them and want out of the marriage without going through the cumbersome procedures of legal divorce or separation. The concern is not misplaced as we know how Section 498A protecting women against harassment for dowry was misused against innocent husbands. Precautionary measures will have to be written into the law on marital rape to prevent its misuse. But the argument that women have no choice but to subject themselves to sexual violence within the marriage and husbands do not need consent of their wives is as preposterous as it is outdated in the modern century. Men and women may be different creatures, different sexual beings even, but the rights of both men and women in the modern century are absolute and equal.

(This was first published in National Herald on Sunday)