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Marital Rape

Context: Recently, the Supreme Court Monday sought the Centre’s response on a batch of petitions related to criminalisation of marital rape.

What is Marital Rape?

• Marital Rape is defined as sexual action that is unwelcomed by the partner, which is carried out without the female partner’s consent or against her will in a coercive and threatening manner.
• It can also happen when the wife is unable to consent and the husband engages in forcible intercourse with his own wife.

History of the marital rape law in India?

• Section 375 states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. In October 2017, the Supreme Court of India increased the age to 18 years.
• The Domestic Violence Act, 2005 hints at marital rape by any form of sexual abuse in a live-in or marriage relationship. However, it only provides civil remedies.
• There is no way for marital rape victims in India to initiate criminal proceedings against their perpetrator.

Central Government’s Arguments

• Upon being questioned in a Parliament session in 2015, then Minister of State for Home dismissed the idea of criminalizing marital rape by saying that “marital rape cannot be applied in the country since marriage was treated as a sacrament or sacred in the Indian society”.
• In 2017, the central government filed an affidavit in the case, saying that criminalizing marital rape “may destabilize the institution of marriage” and become a potential tool for harassing husbands.
• When the matter was in Delhi High court in January 2022, The Centre filed an additional affidavit in the case, saying that it can assist the High Court only after consulting all stakeholders, including the state governments. “Absence of any such consultative process by the executive/legislature may result in some injustice to one section or the other

Law Commission and Judicial Stand

• The need to remove this marital rape exception was rejected by the Law Commission of India in 2000, while considering several proposals to reform India’s laws on sexual violence.
• In Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty Supreme Court stated that Rape is a crime against basic human rights and a violation of the victim’s most prized fundamental right. A married woman, like any other person, has the right to live in dignity, privacy, and control over her own body. These rights cannot be taken away by marriage.
• The Delhi High Court on Wednesday delivered a split verdict on decriminalizing marital rape in the country. While Justice Rajiv Shakdher struck down Exception 2 of the Indian Penal Code’s Section 375 that decriminalized rape within marriage, Justice C. Hari Shankar upheld its validity.

How is marital rape treated around the world?

• According to Amnesty International data, 77 out of 185 (42%) countries criminalize marital rape through legislation.
• Ten countries namely Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka and Tanzania expressly allow marital rape of a woman or a girl by her husband.
• While 74 countries allow women to file complaints against their husbands, 34 out of 185 do not provide any such provisions.
• About a dozen countries allow rapists to avoid prosecution by marrying their victims.
• The United Nations has urged countries to end marital rape by closing legal loopholes, saying that “the home is one of the most dangerous places for women”.

Way Forward

 Rape is not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished Fundamental Rights, namely, the Right to Life contained in Article 21.

The provision under section 375 derives from age-old ideas such as the Doctrine of Coverture, which states that a woman has no individual legal identity after marriage. It is high time the state recognizes the need for a law that restores the basic human right of married women. To put an end to a discriminatory and brutal exception, the centre must introduce a Bill with the participation of all parties

Practice Question  

What are issues and debate around criminalisation of marital rape?