The court, hearing petitions challenging exception to marital rape under India’s sexual assault laws, said that it was ‘difficult to appreciate’ that rape affects only unmarried women’s dignity
‘Just because she is married, does she lose her right to say ‘no’?’
The Delhi High Court made this observation on Tuesday while hearing a batch of petitions seeking criminalisation of marital rape. The bench was hearing PILs filed by NGOs RIT Foundation, All India Democratic Women’s Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law.
“Why is it so different from an unmarried woman? It affects an unmarried woman’s dignity but it does not affect the dignity of a married woman How is it? What is the answer to this? Does she lose her right to say ‘no’? Have 50 countries (which have made marital rape an offence) got it wrong?” a bench of justices Rajiv Shakdher and C Hari Shankar asked.
The justices said the exception from prosecution given to husbands under Section 375 of the Indian Penal Code (IPC) has created a firewall and the court has to see if the firewall is violative of Articles 14 (equality before law) and 21 (protection of life and personal liberty) of the Constitution.
“When a party gets married, there is a right – it can lead to divorce – a legal right to expect a normal, reasonable sexual relationship with your partner… That qualitative difference has a part to play in the exception,” said Justice Shankar, clarifying that he was neither expressing his final opinion on the petitions nor examining “whether marital rape should be punished” at this stage.
Justice Shankar also emphasised that the offence of rape was punishable with 10 years imprisonment and the issue of removal of marital rape exemption required “serious consideration”.
Here’s what you need to know about the subject:
What is marital rape?
The term marital rape (also referred to as ‘spousal rape’) refers to unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent. The words ‘unwanted intercourse’ refers to all sorts of penetration (whether anal, vaginal or oral) perpetrated against her will or without her consent.
Marital rape in India
The definition of rape as per Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over 15 years of age from Section 375’s definition of “rape” and thus immunises such acts from prosecution.
As per law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations.
India is one of 36 countries including Pakistan, Afghanistan, Bangladesh, Egypt, Algeria and Botswana that have not criminalised marital rape.
Please read: Why it is time for India to join 150 countries in criminalising marital rape
Interestingly, the JS Verma committee set up in the aftermath of nationwide protests over the rape in December 2013 recommended that marital rape be criminalised.
The issue had gained traction in 2016 when then Woman and Child Development Minister Maneka Gandhi stated in the Rajya Sabha that the concept of marital rape could not be applied to India.
In her written reply, she had said: “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament.”
What was more surprising was that her 2016 response on marital rapes was a complete contradiction to her own views on the same matter in 2015.
In June that year, in an interview to IANS, she had condemned marital rape as unacceptable and claimed that such a form of rape is “not always about a man’s need for sex, it is also about his need for power and subjugation”. Such cases, she had said, needed to be taken with seriousness, because “violence against women shouldn’t be limited to violence by strangers”.
Activists speak out
Gender researcher Kota Neelima, speaking on marital rape, was quoted as BBC saying, “It is a clear violation of women’s rights, and the immunity it provides to men is unnatural and the main reason behind the growing number of court cases.
“India has a facade of being very modern, but scratch the surface and you see the real face. The woman remains the property of her husband. Rape is criminalised in India not because a woman’s violated, but because she’s the property of another man.”
Read: Marital rape: Legitimised by law, protected by courts
Vrinda Grover, activist-lawyer, has said that it is the consent of a woman which matters and not her relationship with the perpetrator.”Indian society, like any other society, is witnessing marital rapes and it needs to be made punishable. In such cases, consent of a woman is of utmost importance and relation between a perpetrator and the woman becomes irrelevant,” she told Economic Times.
Trisha Shetty, who works towards achieving gender equality, in a column for The Print had written, “The definition of rape in India is still looked at through the lens of a woman’s marital status. If you oppose criminalising marital rape, you are a rape apologist.”
Advocate Karuna Nundy, who is appearing for one of the petitioners in the Delhi High Court case, argued that marital rape exception violates married women’s right to dignity, personal and sexual autonomy and her right to self-expression.
Senior advocate Colin Gonsalves has also argued that marital rape is the biggest form of sexual violence against women which is never reported, analysed or studied.
What the courts have said
Several times in the past, the issue of marital rape has been raised in the courts of India.
In 2015, two retired judges — S N Dhingra and R S Sodhi — of the Delhi High Court said it 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 after thought.”
“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.
In March 2021, the Supreme Court, commenting on marital rape, 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.
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?”
How countries have dealt with the issue
In 1932, Poland was the first to make a law explicitly making it a criminal offence.
Since the 1980s, many countries have legislatively abolished the marital rape immunity. These include South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana, and Israel.
In the US, between 1970s and 1993, all 50 states made marital rape a crime. The Court of Appeals of New York struck down the marital exemption from their codes in 1984.
In 2002, Nepal also got rid of the marital rape exception after its Supreme Court held that it went against the constitutional right of equal protection and the right to privacy.
With inputs from agencies
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