‘Marriage not a licence to unleash brutal beast,’ said Karnataka High Court in a judgment which is now being hailed. Over the years, several petitions have been heard on marital rape, and while many judges have condemned it, some have defended the crime
The debate on martial rape in India is going on for decades. It remains one of the 32 countries in the world that has not criminalised sexual assault in a marriage. But a landmark ruling by a Karnataka High Court comes a relief, even as the country drags its feet on the matter.
Refusing to quash rape charges filed by a wife against her spouse, the High Court urged that “age-old…regressive” thought that “husbands are the rulers of their wives, their body, mind and soul should be effaced”.
“A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’,” a single-judge bench of Justice M Nagaprasanna of the Karnataka High Court said.
“The institution of marriage does not confer, cannot confer and in my considered view, should not be construed to confer, any special male privilege or a license for unleashing of a brutal beast. If it is punishable to a man, it should be punishable to a man albeit, the man being a husband,” order added.
The judgment is being hailed, even as India waits for a verdict that criminalises marital rape. What is India’s official stance on the matter and what have courts being saying so far? We take a look.
According to the law in India, forceful sexual intercourse by a man with his wife isn’t rape unless the wife is under 15 years of age, according to Exception 2 to Section 375 of the Indian Penal Code. Courts across the country have been flooded with petitions that have been demanding to change it for years, but there has been little progress.
‘Take a stand’: Delhi High Court, February 2022
The Delhi High Court in February asked the Centre to make it stance on marital rape clear.
A bench of justices Rajiv Shakdher and C Hari Shankar asked the government to clarify whether it wants to withdraw its 2017 affidavit that opposed petitions asking the court to do away with the exception, which grants the husband immunity from criminal prosecution. In 2017, the government had said that criminalising marital rape would harm marriage.
On 21 February, the HC wrapped up proceedings on a set of PILs on the matter. With the Centre refusing to take a stand until it consulted all stakeholders – states and the National Commission for Women, the court reserved its judgment.
Justice Rajiv Shakdher told the government, “You have to bite the bullet, can’t be like a Trishanku, you have to take a stand this way or that way… a decisive executive has to say yes or no.”
‘Marital rape not illegal’: Mumbai court, August 2021
A Mumbai woman alleged that her husband forcefully had sex with her which led to her paralysis. According to her, the husband had sex with her without her consent a month after the got married in November 2020.
However, the court said that it was not an illegal act and granted the accused anticipatory bail.
Mumbai Additional Sessions judge Sanjashree J Gharat observed that the grievance of a woman did not stand legal scrutiny.
The judge had said that the accused “being the husband cannot be said that he committed any illegal thing”.
Sex in marriage not rape ‘even by force’: Chhattisgarh High Court, August 2021
In yet another shocking judgment, the Chhattisgarh High Court acquitted a man of marital rape and went on to add that sex between a married man and woman does not amount to rape even if it is by force.
“In this case, the complainant is legally wedded wife of applicant No 1, therefore, sexual intercourse or any sexual act with her by the applicant No 1/husband would not constitute an offence of rape even if it was by force or against her wish,” the high court said in its order.
‘Marital rape a ground for divorce’: Kerala High Court, July 2021
On 30 July 2021, a two-judge bench of the Kerala High Court passed a historic order acknowledging a woman’s autonomous and individual rights in a marriage. Hearing a woman’s petition seeking divorce on grounds of harassment and cruelty, it said, “Marital rape amounts to cruelty and is a ground for divorce.”
“A husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty,” the court has held in its order.
“Treating wife’s body as something owing to husband and committing a sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompasses bodily integrity, and any disrespect or violation of bodily integrity is a violation of individual autonomy,” it had noted.
‘However brutal the husband is…’: Supreme Court, March 2021
In March 2021, the Supreme Court had said that when a man and a woman live as husband and wife, that act of sexual intercourse between them could not be called rape.
The court made the remark while hearing case of quashing of an FIR on rape because of false promise of marriage.
Then Chief Justice of India SA Bobde was quoted as saying, “When two people are living as husband and wife, however brutal the husband is, can the act of sexual intercourse between them be called rape?”
‘Show marriage certificate’: Supreme Court, April 2019
A man accused in a rape case approached the Supreme Court with an interesting plea: He said that he had married the victim in March, 2018.
The SC asked the man to show his marriage certificate, as if it provided him to right to commit the crime.
Earlier, the Allahabad High court had dismissed his plea seeking to quash the summons issued to him in the case
‘Marriage doesn’t mean consent for sex’: Delhi High Court, July 2018
While hearing petitions on making marital rape an offence, the Delhi HC observed that physical force is not necessary for rape as a man could bring her wife under financial pressure to force her for sex. It also said that marriage doesn’t mean a wife is always consenting for physical relationship with her husband.
“Force is not a pre-condition of rape. If a man puts his wife under financial constraint and says he will not give her money for household and kids expenses, unless she indulges in sex with him and she has to do it under this threat. Later, she filed a rape case against the husband, what will happen,” the court said.
‘Marital rape disgraceful offence’: Gujarat High Court, November 2017
In November 2017, the Gujarat High Court had condemned marital rape, calling it a “disgraceful offence”.
Justice JB Pardiwala had said, “Marital rape is in existence in India, a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalisation of the practice.”
‘Dangerous to make marital rape offence’: Delhi High Court, May 2015
In May 2015, two retired judges — S N Dhingra and R S Sodhi — of the Delhi High Court said that marital rape would trigger misuse of law by women to settle scores.
Justice Dhingra, said it is “dangerous” to make marital rape an offence and “if it is really happening with a woman, she needs to speak up timely and not live with it for years and then complain, because in that situation it is considered an afterthought”.
“How will it be proved that the woman’s consent was involved or not?” he asked.
Echoing his opinion, Justice Sodhi said it is tough to prove that allegations made by a woman against her husband are genuine. “It is a word of mouth. How do you prove the charge of rape? It can be manipulated easily. I think exceedingly private matters of the bedroom should not be brought out in the open. Take a divorce if such a situation arises. Stop criminalising the world around,” Justice Sodhi said.
Marital rape is more common that we’d like to believe. According to the National Family Health Survey, about 30 per cent of Indian women aged 18 to 49 reported having experienced spousal violence. The average Indian woman is 17 times more likely to face sexual violence from her husband than from anyone else, according to the survey of 724,115 women.
The numbers are staggering. Yet India remains hesitant to criminalise marital rape.
With inputs from agencies
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