The Delhi High Court is currently looking into whether the part of the Indian Penal Code that gives immunity to marital rape is constitutionally valid.

What are Legal provisions linked to Marital Rape?

In India, there’s no specific law against marital rape.

• According to Section 375 of the Indian Penal Code (IPC), rape involves a man having sex with a woman without her consent or with a minor. Exception 2 to Section 375, however, states that sex with a wife above 15 years old is not considered rape.
• In a significant 2018 judgment, the Supreme Court of India ruled that sex with a wife aged 15-18 can be considered rape.
• The exception essentially grants husbands the legal right to engage in consensual or non-consensual sex with their wives.
• This exemption is now being challenged as unconstitutional because it disregards a woman’s right to consent based on her marital status.
• Currently, the only legal recourse for married women facing non-consensual sex is through civil provisions like the Protection of Women from Domestic Violence Act or Section 498-A of the IPC, which deals with cruelty by a husband or his relatives against the wife.

Why is this provision in place?

Marital rape immunity is known to several post-colonial common law countries. It is premised on broadly two assumptions:

• Consent Forever: Back in the old days, there was this belief that when a woman got married, she was giving her husband permission to do whatever he wanted, and she couldn’t change her mind later. It’s like saying she belonged to him.
• Sexual Expectations: Some people used to think that once you’re married, it’s your duty to have babies. That meant a wife was supposed to do whatever her husband wanted in the bedroom because, you know, making babies was the main goal. So, saying no wasn’t really an option for her.

Arguments for Criminalizing Marital Rape

Consent in Marriage: In a marriage, it’s important to understand that it should never be a justification for a husband to force himself on his wife.

Historical Context: The marital exception to rape laws stems from a time when married women couldn’t own property and were legally merged with their husbands. This ignored the equality between spouses and deprived married women of the right to give consent to sexual activities.

Equality under Article 14: Indian women, as per Article 14, deserve equal treatment. Human rights, including the right to personal choices, should not be dismissed, even by a spouse. A married woman has the same right to control her body as an unmarried woman.

Bodily Integrity and Article 21: The right to refuse sexual relations is inherent to Article 21 of the Constitution, which emphasizes bodily integrity and privacy. The Supreme Court has emphasized the sanctity of women and the freedom to make choices in sexual matters under Article 21.

Legal Precedents: Legal cases, such as State of Karnataka v. Krishnappa and Suchita Srivastava v. Chandigarh Administration, have established sexual violence as an unlawful intrusion on privacy and sanctity. The right to make choices related to sexual activity is equated with personal liberty, privacy, dignity, and bodily integrity under Article 21.

Right to Privacy: The 2017 Aadhaar ruling solidified the right to privacy, reinforcing the importance of protecting personal freedoms, including choices related to sexual activity.

Triple Talaq Ruling: The 2017 ruling against instant triple talaq emphasized that laws cannot be manifestly arbitrary, setting a precedent for protecting individuals from unjust practices.

Divorce Grounds: Unfortunately, marital rape is not recognized as grounds for divorce in any personal laws, leaving women without legal recourse. This lack of protection subjects them to ongoing suffering in silence.

Universality of Rape: Rape is a crime regardless of the perpetrator’s identity or the survivor’s age. The trauma of rape is enduring, especially when the perpetrator is a spouse, as the survivor must live with the assailant.

International Recommendations: Both the JS Verma committee and the UN Committee on Elimination of Discrimination Against Women (CEDAW) have recommended criminalizing marital rape to ensure the safety of women and provide the necessary support to recover from such abuse.

Global Precedent: Many developed countries have criminalized marital rape, including the United Kingdom, whose legal system served as a model for India. Criminalizing marital rape is a crucial step toward protecting women from abusive spouses and preventing domestic violence and sexual abuse.

Arguments Against Criminalizing Marital Rape

• Destabilizing the institution of marriage could lead to chaos in families, eroding the foundation of family values crucial for sustaining a stable society. In Indian culture, marriage is considered a sacred bond.
• There’s concern that criminalizing marital rape might be misused, similar to the misuse of other laws, leading to harassment of husbands. For instance, Section 498A of the IPC, addressing harassment of married women, has seen growing misuse.
• Simply making marital rape a criminal offense may not be enough; raising moral and social awareness is crucial to prevent such acts.
• India faces unique challenges like low literacy, financial disparities, societal mindsets, and vast diversity, which need careful consideration before criminalizing marital rape.
• The diverse cultures across states, each with its own set of problems, must be taken into account since criminal law is implemented by the states, and there’s considerable cultural variation.
• The Indian Law Commission and the Parliamentary Standing Committee on Home Affairs, after thorough examination, have not recommended criminalizing marital rape.
• It’s argued that non-criminalization of marital rape does not violate Article 21 of the Constitution, as wives are not forced to live with sexually abusive husbands under personal law.
• Implementing the criminalization of marital rape poses challenges, such as relying on the wife’s judgment to determine if an act qualifies as marital rape, and the lack of concrete evidence in cases involving consensual acts between spouses.

What is the Government’s Stand?

• The Government claims that providing immunity for marital rape is essential to safeguard the sanctity of marriage.
• The Delhi government also supports this law, arguing that married women have alternative legal options available to them.
• According to officials, women who experience rape within marriage can seek recourse through divorce or by filing a case of domestic violence.
• Historically, governments have been hesitant to eliminate certain provisions, as seen in past cases such as the challenges to Section 377 regarding homosexuality. They often prioritize maintaining continuity in laws.

Way Forward

• It’s about time our lawmakers address this issue and acknowledge the legal gap by including marital rape in rape laws. Let’s get rid of Section 375 (Exception) of the Indian Penal Code.
• By doing this, we can make sure women are safer from abusive spouses, providing them the support they need to recover from marital rape and escape domestic violence and sexual abuse.
• Every Indian woman deserves equal treatment, and no one, not even a spouse, should ignore their human rights.
• Making marital rape illegal is crucial, but we also need a shift in the mindset of prosecutors, police officers, and society in general.
• We urgently need a common set of laws for marriage and divorce that applies to everyone, transcending religious differences. It’s time to bring marriage and divorce under secular law.

Read Also: Indian Foreign Policy