The Cost of Silence

The recent comments by the Indian Government reaffirming the marital exemptions carved out within the provisions on rape in Indian criminal law is a distressing reminder of the appalling condition of human rights in India.

Through this post, I first contend that India’s de-facto legalization of marital rape is a combined violation of its commitments under CEDAW and ICESCR. Exploring the public-private divide within the international human rights apparatus, I further contend that it has resulted in the lack of definitive provision on marital rape, enabling serious human rights violations in countries like India.

India’s Refusal to Criminally Sanction Marital Rape and Its International Obligations

The newly enacted penal code of India or the Bharatiya Nyaya Sanhita retains the marital rape exception under Exception 2 of S.63 which states that “sexual intercourse or sexual acts by a man with his own wife is not rape”. While almost all developed countries have explicitly recognized marital rape as a punishable offence, India remains one of the only few countries in the world to decriminalize marital rape on the ostensible grounds of marital sanctity.

India’s deliberate attempt at shielding marital rape from criminal prosecution is not just a failure of its constitutional mandate, but it is in complete disregard of its commitment under the international human rights framework. Despite ratifying critical conventions like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), India has managed to shield its archaic provisions from international scrutiny. This raises important concerns about the efficacy of the international human rights framework and whether it is robust enough to compel states like India to take decisive action in this area. More prominently, the analysis of the current framework prompts a critical question: why have international human rights bodies not yet explicitly recognized marital rape as a human rights violation?

Marital Rape as a Human Rights Violation

Although, treaty bodies like the CEDAW or the ICESCR do not put direct obligation on the state to criminalize marital rape, certain provisions can be interpreted to incorporate such understanding. Article 1 CEDAW defines “discrimination against women” as any restriction made in the enjoyment of human rights of women based on their sex, regardless of their marital status. Article 2(b) confers an obligation on the state to condemn all forms of discrimination against women. More significantly, Article 2(f) imposes a duty on the state to take all appropriate measures to abolish existing laws or customs which constitute discrimination against women.

These provisions strike directly at the root of India’s justification for marital rape, i.e. marital sanctity. The CEDAW categorically eliminates any consideration of marital status as a basis for differential treatment and goes to the extent of conferring positive obligations on the state to abolish any discriminatory law.  Further, Article 15 CEDAW accords women a legal capacity to consent, giving them an absolute right despite their marital status.  These provisions envision absolute equality between men and women, without attaching the caveat of marriage.

A more targeted legal approach to (marital) rape can be derived from General Recommendation No. 19 issued by the CEDAW committee which explicitly addresses family violence against women and recommends the state “to ensure that laws against family violence and abuse,  rape and sexual assault and other gender-based violence give adequate protection to all women” (para. 24, lit. b; emphasis added). On similar lines, General Recommendation No. 35 emphasizes that rape constitutes gender-based violence and consequently, the failure of a state to take appropriate measures to prevent it can constitute a human rights violation. Thus, these provisions leave no room for ambiguity, laws criminalizing rape should be absolute since the crime strikes at the very root of the human rights of women. Any attempt to create exceptions in the familial sphere within such laws violates international human right standards. For India, which has historically been a proponent of human rights, the continued exclusion of marital rape from its criminal framework marks a clear breach of its state obligations under CEDAW.

What About Reproductive Rights of Married Women?

An even more sinister consequence of decriminalization of marital rape is its effect on reproductive rights of women. Lance Gables defines ‘reproductive health’ as broadly encompassing health conditions and social conditions that affect reproductive functioning for example, whether a person seeks to reproduce or to avoid reproduction. General Comment No. 22 of the ICESCR Committee incorporates the right to sexual and reproductive health within the larger human rights framework. It states that the right to sexual and reproductive health entails a set of freedoms and entitlements. These include the right to make free and responsible decisions and choices, free of violence, coercion and discrimination, regarding matters concerning one’s body and sexual and reproductive health. A logical corollary to this freedom is the freedom to choose when to reproduce and the freedom to get an abortion.

Further the General Recommendation No. 24 of the CEDAW Committee incorporates the right to reproductive health as a facet of the right to health under Article 12 of CEDAW. It highlights that harmful practices such as female genital mutilation, polygamous marriage, and marital rape exacerbate the vulnerabilities of women in exercising control over their sexual health. The  CEDAW’s recommendation in this regard is promising, since it directly addresses the impact of marital rape on women’s sexual and reproductive health.

Legalizing marital rape significantly heightens the risk of unwanted pregnancies. The lack of criminal consequences strips women of the legal protection of their right to consent, leaving them vulnerable to non-consensual sexual activity. A consequence of the power exerted by their partner is the difficulty to insist on the use of contraceptives. As a result, women are more likely to experience unwanted forced pregnancies. In such cases, women are denuded of their reproductive autonomy and are exposed to potential sexual health risks. This violates women’s right to sexual and reproductive health which has been exalted as a human right.

In addition, an insidious result of the lack of criminalisation is the difficulty to seek late abortions. Explanation 2 of Article 2 of the Medical Termination of Pregnancy Act, 1971 (MTP Act) permits abortion in India at a later stage if the pregnancy has been “caused by rape”, which can cause a “grave injury” to the pregnant woman’s mental health. This raises an important question as to whether marital rape is included in the MTP Act’s definition of rape. Although the Supreme Court of India recently held that marital rape is “rape” for the purposes of the MTP Act, it can still be subject to the exception under the penal code. This contradiction between the MTP Act and the general criminal law creates a loophole that could potentially undermine the court’s judgment.

It is also important to note that embedding the right to get an abortion in cases of marital rape under the MTP Act presents an inconsistent interpretation of women’s rights by the Apex court. The Supreme Court has till now denied to read down the marital rape exception under the criminal codes but provided respite in cases of abortion. The fact that married women can seek later abortions due to marital rape, but no justice for the act of rape itself highlights a serious gap in the protection of women’s bodily autonomy. Until the legislature takes definitive action to criminalize marital rape, this piecemeal approach undermines the broader struggle for gender equality and leaves married women vulnerable to systemic injustice.

Is the International Human Rights Framework Enough?

The international community has established a clear consensus on the necessity of protecting women’s rights, as reflected in various treaties and recommendations. Through this framework, although it is possible to interpret the lack of protection from marital rape as a human rights violation, it is surprising how international law has yet to define it as such.

This situation points to a broader issue of women’s rights within the international human rights framework. The critique of human rights in the past decade has centred around its ‘gender myopia’ and ‘operational ghettoization’ of the authorities who regulate such rights. The feminist critique asserts that human rights law does not recognize certain oppressive practices against women as human rights violations since it is excessively focused on the public-private divide.

Marital rape is often considered a private matter lying within the conjugal domains of marriage.

The idea that what happens inside a marriage is “private” has made it easier to overlook serious violations, leaving many women without the legal protections they desperately need.

Although the CEDAW has recently recognized a range of legislative measures that state parties are obligated to implement to prevent familial violence including marital rape, the realization of these obligations are still at a nascent stage. Moreover, the dearth of specific provision casting a positive obligation on the state to criminalize marital rape continues to undermine meaningful progress. The absence of clear and direct recognition of such abuse in international human rights treaties inhibits state accountability as seen in the case of India.

This post has attempted to interpret international human rights frameworks as encompassing laws against marital rape. However, there is a need for an explicit provision establishing state-obligation to criminalize marital rape. Unless this is done, countries like India will continue to manoeuvre around the loopholes in international law. This dissonance suggests a need for stronger advocacy within the international human rights community to hold states accountable.

To state the obvious, “marital rape” has unparallel consequences on a women’s right to life, sexual health and her bodily autonomy. Given the distressing exemption of marital rape from criminal sanctions in India, there is an urgent need for international intervention empowering married women to prosecute against such crimes. The domestic law’s failure to protect women in India is apparent, and unless there is international efforts to hold India accountable, violations of women’s right will persist. This necessitates further efforts from the international community to explicitly recognize marital rape as a human rights violation and initiate actions against India for its failure to adhere to its commitments under the international human rights framework.