Debunking the Validity of Culture-Based Justifications for the Retention of the Marital Rape Exemption in India

Adrija Ghosh

Jump to Content

Debunking the Validity of Culture-Based Justifications for the Retention of the Marital Rape Exemption in India

In: The Asian Yearbook of Human Rights and Humanitarian Law

Author:

Adrija Ghosh

Adrija Ghosh
Search for other papers by Adrija Ghosh in
Current site
Google Scholar
PubMed

Type:: Chapter

Pages:: 77–106

DOI:: https://doi.org/10.1163/9789004431768_005

Purchase instant access (PDF download and unlimited online access):

€42.00€35.00 excl. VAT

Add to Cart

Redeem Access Token

Abstract

Marital rape is not recognised as a crime in India. The government has also taken a stance against the removal of the marital rape exemption from the statute books. It has argued that doing away with the marital rape exemption will destabilise the institution of marriage; will lead to harassment of men by their wives and that the international precedent of removing the marital rape exemption cannot be applied to India given the unique differences in the needs and aspirations of the people of the country. These cultural relativist arguments are the focus of this article. In this article, I have attempted to reject the aforementioned justifications and have tested the hypothesis that culture-based defences are not sufficient to justify the retention of the marital rape exemption. I have surveyed human rights instruments that address the clash between gender and culture. Having done so, I have come to the conclusion that culture-based justifications cannot be legitimately used to deny fundamental human rights that are grounded in certain basic common denominators for social justice, such as equality, autonomy and dignity. The arguments forwarded in this article are based on a combined reading of human rights law and the ‘Capabilities Approach’. I have primarily used Martha Nussbaum’s formulation of the capabilities approach, as the focus of her work has been on laying down a threshold level of basic capabilities, that must be protected through constitutions and may be demanded by citizens from their governments. I have also conducted a comparative analysis of Nepal, Philippines and Israel to analyse how the said legal systems and societies have overcome cultural and traditional barriers to ultimately reject the marital rape exemption. Drawing from the said analysis, I have sought to establish that the removal of the exemption is not incongruent even within the Indian society. The central thrust of the article is that the law must seek to create a multicultural arrangement within which reasonable pluralism is permitted while also respecting the human rights of individual members. Cultures must adapt and inculcate within themselves certain basic values essential for maintaining a minimum standard of social justice. By using human rights law within the overall conceptual and philosophical framework of the capabilities approach, I have demonstrated that the Indian government’s insistence on the retention of the marital rape exemption is illegitimate and unjustified, within a multicultural arrangement.

Citation Info

Save
Cite
Email this content

Share link with colleague or librarian

You can email a link to this page to a colleague or librarian:
Email this content
or copy the link directly:

https://brill.edhh.ma/abstract/book/9789004431768/BP000004.xml
The link was not copied. Your current browser may not support copying via this button.

Link copied successfully

Collapse
Expand

The Asian Yearbook of Human Rights and Humanitarian Law

Volume 4

Series: The Asian Yearbook of Human Rights and Humanitarian Law, Volume: 4

Cover The Asian Yearbook of Human Rights and Humanitarian Law

E-Book ISBN:: 9789004431768

Publisher:: Brill | Nijhoff

Print Publication Date:: 17 Jul 2020

Subjects

Front Matter

Metrics

	All Time	Past 365 days	Past 30 Days
Abstract Views	498	57	18
Full Text Views	15	1	0
PDF Views & Downloads	20	0	0

African Studies	Education	Media Studies
American Studies	History	Middle East and Islamic Studies
Ancient Near East and Egypt	Human Rights and Humanitarian Law	Musicology
Art History	International Law	Philosophy
Asian Studies	International Relations	Religious Studies
Biblical Studies	Jewish Studies	Slavic and Eurasian Studies
Biology	Languages and Linguistics	Social Sciences
Book History and Cartography	Life Sciences	Theology and World Christianity
Classical Studies	Literature and Cultural Studies

Subjects

Authors

Open Access

Product Information

Company

Contact

Debunking the Validity of Culture-Based Justifications for the Retention of the Marital Rape Exemption in India

Abstract

Citation Info

Share link with colleague or librarian

The Asian Yearbook of Human Rights and Humanitarian Law

Volume 4

Table of Contents

Metrics

Metrics