• UGI USER
  • Sep 05, 2023
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Q. The issue of marital rape is often ignored due to the belief that marriage is a sacred institution. In this context, discuss whether marital rape should be criminalized.

Approach:

  • Discuss some recent judgements on the issue of marital rape.
  • Briefly mention the different provisions dealing with rape in Indian legislation.
  • Give arguments for and against the criminalization of marital rape.
  • Conclude with a suitable way forward.

Answer:

  • Recently, the Kerala and Chhattisgarh High Courts gave separate judgements on matters relating to marital rape. Both did not consider the constitutionality of the marital rape section of the Indian Penal Code (IPC), but have renewed the debate on the criminalization of marital rape.
  • According to an exception to section 375 of the IPC, sexual intercourse by a man with his own wife (provided she is over the age of 18 years) does not amount to the offence of rape.

Arguments against making marital rape a criminal offence include

  • Consent implied in marriage: When a couple enters the institution of marriage, they give each other the consent to engage in sexual acts and they forgo the right to have sexual intercourse outside of marriage.
  • Difficulty in establishing the crime: Medical evidence used to establish rape cannot be used as an evidence of marital rape and it would be difficult to establish when the consent was withdrawn by the accuser.
  • Potential of misuse: The Supreme Court and various High Courts have already highlighted the rising misuse of Section 498A of the IPC (which is concerned with cruelty to women), which has a very low conviction rate are merely 12.1 percent. This might also be the case with the marital rape provision, which would impact the family system and consequently the social fabric.
  • Legal remedies against abuse already available: Various provisions of the IPC and specific legislations such as the Protection of Women from Domestic Violence Act, 2005, provide protection to women against many forms of abuse including physical harm.

Arguments for criminalizing marital rape are

  • Violation of fundamental rights: The exception to Section 375 of the IPC excluding marital rape from the definition of crime violates the right to equality, right to privacy, right to personal liberty and right to consent enshrined under Articles 14, 19 and 21 of the Constitution of India.
  • Strengthens patriarchal mindset: Consent is presumed between married couples even when the wife may withdraw the consent. It denies the right of women who want to exit marriage on the basis of marital rape by not recognising marital rape and by legalising sexual violence in matrimony. It also objectifies women and forces them to remain in violent and unwanted marriages.
  • Intergenerational trauma: Children born and raised in an environment of violence against women experience its effects later in life.
  • Recommendations by experts and international practice: Justice Verma Committee Report of 2013 recommended that exceptions to marital rape should be removed. Further, the European Commission on Human Rights has held that “a rapist remains a rapist regardless of his relationship with the victim”. Also, marital rape is a criminal offence in South Africa, Australia, and Canada, among other countries.
  • Judicial pronouncements: The Supreme Court, while decriminalizing adultery, stated that legislation which perpetuates stereotypes in relationships and institutionalized discrimination is a clear violation of the fundamental rights guaranteed by the Constitution. Also, the Kerala High Court has opined that in modern social jurisprudence, spouses are treated as equals and one cannot claim superiority over the other in any regard.

Thus, it is time to have a relook at the need for criminalizing martial rape keeping in mind the fundamental rights and special conditions of India such as illiteracy, lack of adequate avenues for female empowerment etc.