Boreal

Women and the Koran

Appendices

Marital Rape India and Foreign Objects

It is not only countries with a legal system based on, or influenced by the Sharia as in Egypt, that marital rape is not a crime or a crime not prosecuted.

In India, growing clamour to criminalise rape within marriage by Geeta Pandey, BBC News, Delhi, September 30, 2021 (excerpt)

In India, a society rooted in patriarchal traditions, marriages are sacrosanct and it is not a crime for a man to rape his wife.

But in recent weeks, courts have given conflicting rulings on marital rape, leading to renewed calls from campaigners to criminalise rape within marriage.

On Thursday, Justice NK Chandravanshi of the Chhattisgarh high court ruled that "sexual intercourse or any sexual act by a husband with his wife cannot be rape even if it was by force or against her wish."

The woman had accused her husband of "unnatural sex" and raping her with objects.

The judge said the man could be tried for unnatural sex, but cleared him of the much more serious offence of rape since Indian law does not recognise marital rape…

The law that Justice Chandravanshi invoked is Section 375 of the Indian Penal Code. The British colonial-era law, which has been in existence in India since 1860, mentions several "exemptions" - situations in which sex is not rape - and one of them is "by a man with his own wife" who's not a minor.

The idea is rooted in the belief that consent for sex is "implied" in marriage and that a wife cannot retract it later.

But despite a long and sustained campaign to criminalise it, India remains among 36 countries where the law remains in the statue book, leaving millions of women trapped in violent marriages.

According to a government survey, 31% of married women - almost one in three - have faced physical, sexual and emotional violence from their husbands.

In a an earlier version of this article, the complainant said that some of the objects her husband inserted were quite large. This statement had no impact on the judge’s ruling even though it is evident that the complainant was worried about physical injury. The Sharia, by limiting what can be inserted in a woman’s vagina during foreplay to a husband’s appendages may actually mitigate the risk of injury, if not discomfort.

As far as the methods of mutual stimulation in foreplay… no foreign object should be used. The restriction on the use of foreign objects is based on the following hadith:

Ubaydullah bin Zurarah says that he had an old neighbor who owned a young slave-girl. Because of his old age, he could not fully satisfy the young slave-girl during sexual intercourse. She would therefore ask him to place his fingers in her vagina as she liked it. The old man complied with her wishes even though he did not like this idea. So he requested ‘Ubaydullah to ask Imam ‘Ali ar-Reza (A.S.) about it. When ‘Ubaydullah asked the Imam (A.S.) about it, the Imam (A.S.) said, “There is no problem as long as he uses any part of his own body upon her, but he should not use anything other than his body on her.”

 Sayyid Athar Husayn S.H. Rizvi, Islamic Marriage Handbook