NEW DELHI — A court ruled that rape laws in India do not apply to married couples. On May 15, a judge issued a statement that once a man and a woman are legally wed, forced sex is no longer a crime.
Last year, a 21-year-old woman accused a man of drugging her, taking her to the marriage registrar’s office in Ghazibad where their marriage was registered on March 4, 2013, and then allegedly raped and abandoned her.
The woman lodged a complaint with the Baba Haridas Nagar police station in Delhi in October of 2013.
The accused said that the marriage was solemnized in February of 2011 and that he decided to get their marriage registered at Ghaziabad court upon insistence of his wife. He later alleged that his wife framed him after failing to gain ownership of his sister’s house.
A Delhi court acquitted the accused and stated that forced intercourse with a woman does not amount to rape if she is married to the accused.
“Sexual intercourse between a man and a woman doesn’t come within the ambit of rape, even if the same was against the will of the victim,” said additional sessions judge Virender Bhat.
Indian women’s rights groups have campaigned for years for the right for women to refuse sex. In 2013, the Indian legislative branch amended the existing rape law and several of the changes were recommended by the Justice Verma committee, a three-member panel appointed to suggest amendments. However the recommendation that marital rape should be criminalized was not accepted, despite the writings of Justice Verma, which stated that “marriage should not be considered as an irrevocable consent to sexual acts.”
One of the justifications to the decriminalization was a part of the works of Sir Mathew Hale (1609-1676), a former chief justice of England. Hale stated that a woman provides consent to sexual intercourse to her husband, which she cannot revoke. In exchange, the husband offers protection to his wife.
This is called the contractual theory and ties into the second justification—the property theory. This theory states that a woman is a man’s property and that she belongs to her father before marriage and then belongs to her husband after.
It’s actually the third justification for the martial rape exemption that the court used to justify its ruling. In the theory—the unification theory—the wife forfeits her legal existence upon getting married. This means that the woman cannot own property, sue or be sued, enter into contracts or manage her property. Basically, once a woman is married, she is no longer considered to be an independent person.
The theory goes on to state since the wife has no legal existence outside of her husband’s identity, it is not “legally possible for a man to rape his wife,” a theory the court seemed to agree upon.
The court’s decision stated that “[thus]the prosecutrix (the wife) and the accused being legally wedded husband and wife, the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused.” The court added on stating that there was no “clinching or convincing evidence on record to show that the accused had administered any stupefying substance to the prosecutrix” before taking her to the registrar’s office.
However, should a woman deny sex to her husband, Indian courts may grant the husband a divorce on the grounds that the wife was not upholding her part of the marriage contract.
India’s decision to decriminalize marital rape makes them the most recent nation to do so, joining China, Afghanistan, Pakistan and Saudi Arabia.