Marital Rape

In News

• Recently, the Delhi High Court delivered a split verdict in a batch of petitions challenging the exception provided to marital rape in the Indian Penal Code (IPC).

About

• The court was hearing a clutch of four petitions challenging the constitutionality of the exception to Section 375. 
• Petitioners include the All India Democratic Women’s Association (AIDWA).

Law on Marital Rape

• Section 375 of IPC defines rape and lists seven notions of consent that, if vitiated, would constitute the offence of rape by a man. 
  • However, the provision contains a crucial exemption: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.
• The only recourse against non-consensual sex for married women are civil provisions under the Protection of Women from Domestic Violence Act or Section 498-A of the IPC on cruelty against a wife by the husband or a husband’s relatives.

Government’s Stand

• The Centre initially defended the rape exception and later changed its stand and told the court that it was reviewing the law, and that “wider deliberations are required on the issue”.
• The Solicitor General brought to the court’s notice a 2019 committee set up by the Ministry of Home Affairs to review criminal laws in the country.
• The Delhi government argued in favour of retaining the marital rape exception. 

Landmark Judgements

• In a landmark judgment in 2018, the Supreme Court (SC) of India held that it will be considered rape if a man has sexual intercourse with his wife if she is aged between 15 and 18.
• In the State of Karnataka vs. Krishnappa, the SC held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.
• In the Suchita Srivastava vs. Chandigarh Administration, the SC equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.

Arguments Against Criminalising Marital Rape

• Destabilise marriage as an institution: It may create absolutely anarchy in families and destabilise the institution of marriage.
• Misuse of law: It may become an easy tool for harassing the husbands by misusing the law similar to the growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of the IPC.
• Law Commission has not recommended: Indian Law Commission and the Parliamentary Standing Committee on Home Affairs after thoroughly examining the matter did not recommend the criminalization of marital rape.
• Implementation issues: Criminalizing marital rape will create serious implementational issues like veracity of testimony, evidences in the courts etc.
• Diversity in Culture: India has its unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, the mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital rape.
• Awareness is more important: Merely criminalizing marital rape may not stop it as “moral and social awareness” plays a vital role in stopping such an act.

Arguments For Criminalising Marital Rape

• Ensuring Security of Women: It will ensure that women remain safer from abusive spouses and they can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse.
• Marriage is not a license: A marriage should not be viewed as a license for a husband to forcibly rape his wife with impunity. Further, a married woman has the same right to control her own body as does an unmarried woman.
• Bodily Integrity is intrinsic to Article 21: A woman is entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy is an intrinsic part of Article 21 of the Constitution. 
  • Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21.
• Article 14: Indian women deserve to be treated equally under article 14 and an individual’s human rights do not deserve to be ignored by anyone, including by their spouse.
• Torture for Life: A woman who is raped by a stranger lives with a memory of a horrible attack; a woman who is raped by her husband lives with her rapist throughout her life.

Global Practice

• The marital rape immunity is known to several post-colonial common law countries. 
• Australia (1981), Canada (1983), and South Africa (1993) have enacted laws that criminalise marital rape.
• In the United Kingdom, the House of Lords overturned the exception in 1991. 
  • In their landmark decision in the case known as R v R, the Lords took the view that the time had “arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim”. 
  • The European Court of Justice reviewed the ruling and upheld the decision of the Lords as a “foreseeable evolution” of the law.
  • Subsequently, in 2003 marital rape was outlawed by legislation in the UK.

Way Ahead

• Court’s intervention moves the needle in favour of doing away with the marital rape exemption in the law. 
• The SC’s refusal to stay the order, the first time put a man on trial for marital rape, indicates that the higher judiciary is willing to carry out a serious examination of the colonial-era provision.
• The JS Verma committee set up in the Nirbhaya gang-rape case and the UN Committee on Elimination of Discrimination Against Women (CEDAW) in 2013 had recommended that the Indian government should criminalize marital rape.
• It is important that legal prohibition on marital rape is accompanied by changes in the attitude of the prosecutors, police officers and those in society generally.

Source: IE