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Marital rape immunity in India: historical anomaly or cultural defence?

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Abstract

This paper will examine the legal position India holds today with respect to marital rape. It will first study how India’s criminal law has been shaped over the years: starting with its colonial common law inheritance from England, and with the development of the criminal law through its inclusion in Macaulay’s Code and continued retention in the Indian Penal Code 1860 (IPC). Outside the IPC, the law has not stood still. There have been recent reforms seeking to advance women’s rights to be free from family violence, such as The Protection of Women from Domestic Violence Act 2005 (PWDVA). After tracing the history of India’s legal responses, the paper will closely investigate the influence of broader Indian culture (claims based on patriarchy and religion) on rape law reform, finally making a case for abolition of the immunity based on the fundamental principle of equality, drawing on arguments from the human rights guarantees included in the Constitution of India, and India’s international legal obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

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Notes

  1. A comprehensive discussion of this issue is outside the scope of this paper. For further discussion on formal legality and retrospectivity in the context of marital rape, see [17], p. 46–51; [18].

  2. This amendment was introduced via The Criminal Law (Amendment) Act 2013 (India).

  3. In deciding against the criminalisation of marital rape, 12 of the 29 members of the Lok Sabha (Lower House of Parliament) expressed their concern that such laws would be misused by women: [25], p. 262; [26], p. 8.

  4. According to the World Health Organisation, approximately 30% of women report experiencing physical or sexual violence by their partner. Furthermore, violence against women affected one in three Australian women, costing the economy around $13.6 billion in 2009. For further discussion, see [30]; [31], p. 56–7.

  5. [19], p. 139; [35]. It would be interesting to investigate the validity of these claims to see if they could be generalised across the entire population of Indian women. Scholars like Bonner would disagree, given the existence of certain Indian regions that are known for valuing women and their independence (such as Kerala, a state in south-west India) [43]. While this question would greatly benefit from further research, it is outside the scope of this paper.

  6. [39]. The IMAGES survey compared male attitudes in Brazil, Chile, Croatia, Mexico and Rwanda. India does not perform well in global studies. In the United States, the gender gap is perceived to be narrower in more recent years, as the younger generation of men are less conservative and less discriminatory against women compared to the older generation; Australian men also displayed an increased level of participation in movements to address and prevent violence, as well as better knowledge about violence against women. For further discussion, see [40]; [41].

  7. Cited in [43], p. 196.

  8. Over the past two decades, in countries such as Australia, Canada, the United Kingdom and the United States, the legal response to domestic violence has been focused on civil protection orders. These are now the most common legal remedy sought by women suffering from domestic violence. For further discussion, see [31]; [52].

  9. Dowry is a concept in traditional Hindu weddings, where the bride brings cash or gifts received from her family and friends to the groom’s family. This religious and cultural practice became a method for harassment and even murder, of women, by husbands or relatives, because of disappointing dowry. For further discussion, see [53], p. 72; [54].

  10. See [46] art 14 (equality before the law to all persons); 15 (prohibition from discrimination on grounds of sex); 21 (protection of life and liberty); and 51A(e) (fundamental duty to renounce practices derogatory to dignity of women).

  11. See [27], p. 206. India possesses an impressive set of institutional apparatus of governmental departments and commissions, such as The Department of Women and Child Development, The Parliamentary Committee on the Empowerment of Women, and the National Commission for Women.

  12. In countries that follow a dualist theory regarding international law, international obligations do not automatically form part of domestic law unless incorporated into legislation by parliament; but if uncertainty arises between international and domestic obligations, judges may turn to international obligations to influence the development of the domestic laws [69]. India has adopted this dualist theory and its judiciary plays an active role to ensure India complies with its international obligations by turning to the relevant international treaties and conventions in interpreting domestic provisions [70]. For a detailed discussion of this topic, see [17], ch 11.

  13. CEDAW condemns discrimination against women and calls on states to undertake appropriate measures to modify or abolish customs and practices that discriminate against women. Article 5(a) provides ‘States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.’

  14. For a detailed discussion of feminist legal theories, see [17], 68–115.

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Acknowledgements

Based on a 2015 paper submission for LAWS4114 Advanced Research as part of the Bachelor of Laws (Honours) program at TC Beirne School of Law, The University of Queensland. Thank you to Dr. Ashutosh Misra and Zoe Brereton for their invaluable help and guidance. Special thanks to Professor Simon Bronitt, without whom this paper would not have been written.

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    Deborah Kim

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Kim, D. Marital rape immunity in India: historical anomaly or cultural defence?. Crime Law Soc Change 69, 91–107 (2018). https://doi.org/10.1007/s10611-017-9705-3

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