The first rape law emerged in Babylon in 1900 BC. The Court of Hammurabi dictated that if a man forces sex upon another man’s wife, or if a man forces sex upon a virgin that “is living in her father’s house,” then “that man should be put to death”. A man could be sentenced to death for forcing sex upon someone else’s wife or daughter on the grounds of vandalising their property. Hence, the idea of a “husband having sexual intercourse upon his wife” was deemed as man’s legal right.
In most other parts of the ancient world, the earliest laws defined rape as a property crime against the father or the husband, rather than the woman herself. Rape was not possible in the marriage because a man could do whatever he wanted with his wife, his property.
In Babylonia, married women who were raped were put to death along with their attackers, because raped women were viewed as damaged goods and no longer marriageable assets.
Further, in Assyria, the father of a raped woman was allowed to rape the rapist’s wife or daughter as punishment. Neither Ancient Greece nor Rome had a concept of rape. The word “rapist” was not in use until the late 19th century in the United States of America.
Matthew Hale, a British jurist, said, “Marriage was a legal contract by which a woman ‘gave herself’ to her husband for life”. He also said, "The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract." Rape was considered impossible in marriage, because, according to society, a woman’s purity cannot be “defaced'' by her husband. This theory is deeply rooted not just in the common law system of Britain, but also in the judicial system of all its colonies. The Indian Penal Code was drafted in 1860 under the influence of these ancient laws.
Over time, awareness regarding the rights of women increased in society and the recognition of marital rape as a crime also started. Poland was the first country to criminalise marital rape in 1932. Under the influence of the second wave of feminism in1976, Australia was the first common law country to pass reforms and criminalise marital rape. England criminalised marital rape in 1994, with other countries like South Africa, Ireland, Israel, and Ghana following suit. Furthermore, all 50 states of the United States have criminalised marital rape.
In 2022, unfortunately, India remains one of 36 countries where it is not a crime for a man to rape a woman—so long as they are married.
Section 375 of the Indian Penal Code defines rape as "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age."
However, this comes with an exception, stating that “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.”
Why is this the case? In 2012, in response to a judicial committee’s recommendation to criminalise marital rape, a Parliamentary Standing Committee responded that doing this would put the entire family system under “great stress”. According to Indian politicians and public figures, criminalising rape within a marriage would “destroy marriages” and “create absolute anarchy in families”.
A VIOLATION OF THE FUNDAMENTAL RIGHTS OF WOMEN
Article 14 of the Constitution of India states, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India,” yet the rape laws of the country are discriminative as they categorise women into two types—married and unmarried. This takes away the rights of a married woman against sexual exploitation done on her by her husband. It also violates article 21 of the Constitution, which guarantees the right to personal liberty to every citizen, the right to sexual privacy, the right to live with human dignity, and the right to bodily self-determination.
India also violates the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights by discriminating between married and unmarried women. In fact, in 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government criminalise marital rape, says the Indian Express. Article 1 of CEDAW defines "discrimination of women" as "any distinction...made based on sex which has the effect of impairing...the exercise by women, irrespective of their marital status...of human rights and fundamental freedoms in the...social, cultural, civil or any other field".
According to National Family Health Survey, over 80% of married women who are victims of sexual violence report their current husbands to be the perpetrators. Over 50 countries around the world have outlawed marital rape. Feminist movements across the globe are emphasising the importance of sexual consent and empowering women to report sexual violence no matter how powerful the perpetrator. Yet, India continues to uphold a man’s right to rape his wife. The fight to criminalise marital rape in India is not just about changing the law on paper. It is about attacking the mindset that still views a woman as her husband’s property, not as an individual with her own agency. It is about challenging larger rape culture, which denies women their fundamental rights, respect, and bodily autonomy.
Ishita Singh is a budding journalist and an English Literature Graduate from Delhi University. She has worked extensively in the development sector with UNDP and has a deep interest in intersectional feminism, human rights and labour studies.