'Marital Rape Clause': The History | The Issue

There is little to say about marital rape that has not been said already. Justifications, questions, considerations all sound like feeble attempts to hide how inherently patriarchal and misogynistic the law is. We don’t need to tell you how bizarre it is to assume that women give unwavering consent to sex once they get married, because let’s be honest women often times don’t even have the agency to say no to the marriage in the first place – so explaining this falls beyond the purview of common sense. We won’t get into it.

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Today, we will be talking about Phulmoni Dasi, a 10-year-old child bride who lost her life due to marital rape, at the hands of her 30-year-old-husband. The story takes place in 1890 – precolonial India, when India was still being ruled by age old British laws. Oh, here’s a fact – the exception to the rape law, the clause on marital rape was introduced by the British in 1860 – so I suppose we’re still being ruled by laws written 162 years ago, but well back to the story. Married to a man 2 decades older than her, the young bride died when her husband tried to consummate the marriage.

The case went to litigation in the Calcutta Sessions Court on 6th of July 1890, and was registered as one of the most horrifying cases of marital rape. Facts of the case brought forth by the autopsy show that that the young girl died of excessive injury and trauma to her private parts, and her body was found in a pool of her own blood. Her ovaries and uterus had not developed fully. She had not even begun menstruating. The victim’s husband was convicted under the Indian Penal Code for ‘causing grievous hurt by act of endangering life or personal safety of others’ but not of rape. Why? Because as per the exception introduced to the IPC in 1860, sex with one's wife is not considered rape. At the time Phulmoni was assaulted, she was of legal age and wedded to her husband.

The case even at the time shook the conscience of the nation and reform came in the form of raising the age of consent from 10 years to 12 in 1890. The exception now says, that a man who has sex with his wife as long as she is 15 years of age, is not rape. Phulmoni’s case brings to light many important and dangerous facets of this exception.

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Perhaps the one most relevant to us today would be that the law is 162 years old. It was drafted at a time when young girls of 10, were considered old enough to give consent for sex. Before their reproductory organs had even developed. If we can now see why such a law is unreasonable, it puzzling why we still assume that consent by married women is seen as unwavering and present at all points of time.

Despite signing the UN declaration on Elimination of Violence against Women which clearly defines marital rape as violence against women, it is still not a crime in India. This, despite the fact that as per the UN population fund nearly 75% of married women in India are subjected to assault by their husbands – compounded by the Covid-19 pandemic.

Part 2 - 'Marital Rape Clause': India's global standing
Part 3 - 'Marital Rape Clause': The concept of consent