Section 375 of the Indian Penal Code 1860 says that sexual acts by a man on a woman against her free will or consent would constitute rape. However, Exception 2 of the law exempts unwilling sexual intercourse between a husband and a wife, thus immunising such acts from prosecution
On Tuesday, all eyes turned to the Karnataka High Court when it delivered a judgment, saying that ‘rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’.
The statement came as the court was hearing a case filed by a woman in which she alleged that her husband had treated her like a sex slave right from the start of their marriage. Describing her husband as “inhuman”, she alleged that she had been forced to have unnatural sex, even in front of her daughter, by him.
While allowing the framing of rape charges against the husband, the court, as per a report in NDTV 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 licence 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.”
In its order, the Karnataka High Court said, “A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape. Such sexual assault by a husband on his wife will have grave consequences on the mental sheet of the wife, it has both psychological and physiological impact on her. Such acts of husbands scar the soul of the wives. It is, therefore, imperative for the law makers to now ‘hear the voices of silence’.”
As people hail the hail the order, with some opining that it could help shape the debate on the matter, let’s take a look at what we know on 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.
Also 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 saying to BBC, “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.”
Also 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 argues 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.
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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