Criminalisation of Marital Rape


    In News

    • Recently, Supreme Court sought Centre’s response on Criminalisation of marital rape.

    More about the news

    • Petitions:
      • Several petitions are pending in the apex court regarding the issue of criminalisation of marital rape.
        • The petitioners had challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on grounds that it discriminated against married women who are sexually assaulted by their husbands.
      • The appeals follow a split decision from the Delhi High Court on whether or not to prosecute husbands for non-consensual sex with their wives.

    Marital Rape:

    • Marital rape (or spousal rape) is an act in which one of the spouses indulges in sexual intercourse without the consent of the other.
    • Today, more than 100 countries have criminalized marital rape but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized.

    Law on Marital Rape

    • Section 375 of IPC defines rape 
      • The section lists seven notions of consent that, if vitiated, would constitute the offence of rape by a man. 
    • However, the provision contains a crucial exemption: 
      • Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.
    • The only recourse against non-consensual sex for married women are civil provisions under the Protection of Women from Domestic Violence Act or Section 498-A of the IPC on cruelty against a wife by the husband or a husband’s relatives.
    • The issue:
    • The issue focuses on the exception in rape law in the Indian Penal Code which dismisses the idea of rape within marriage
    • The questions raised include whether or not a married woman has bodily autonomy
    • In short, whether a husband should accept that his wife’s “no means no”, and any transgression would amount to rape.
    • Delhi High Court judgement:
      • Delhi High Court Bench which delivered a split opinion, had favoured striking down the marital rape exception for being “unconstitutional”
      • Court said it would be “tragic if a married woman’s call for justice is not heard even after 162 years” since the enactment of the IPC.

    Arguments Against Criminalising Marital Rape

    • Destabilise marriage as an institution: 
      • It may create absolutely anarchy in families and destabilise the institution of marriage.
    • Misuse of law: 
      • It may become an easy tool for harassing the husbands by misusing the law similar to the growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of the IPC.
    • Law Commission has not recommended: 
      • Indian Law Commission and the Parliamentary Standing Committee on Home Affairs after thoroughly examining the matter did not recommend the criminalization of marital rape.
    • Implementation issues: 
      • Criminalizing marital rape will create serious implementational issues like veracity of testimony, evidences in the courts etc.
    • Diversity in Culture: 
      • India has its unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, the mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital rape.
    • Awareness is more important: 
      • Merely criminalizing marital rape may not stop it as “moral and social awareness” plays a vital role in stopping such an act.

    Arguments For Criminalising Marital Rape

    • Ensuring Security of Women: 
      • It will ensure that women remain safer from abusive spouses and they can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse.
    • Marriage is not a license: 
      • A marriage should not be viewed as a license for a husband to forcibly rape his wife with impunity. Further, a married woman has the same right to control her own body as does an unmarried woman.
    • Bodily Integrity is intrinsic to Article 21: 
      • A woman is entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy is an intrinsic part of Article 21 of the Constitution. 
      • Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21.
        • Article 14: 
          • Indian women deserve to be treated equally under article 14 and an individual’s human rights do not deserve to be ignored by anyone, including by their spouse.
    • Torture for Life: 
      • A woman who is raped by a stranger lives with a memory of a horrible attack; a woman who is raped by her husband lives with her rapist throughout her life.

    Global Practice

    • The marital rape immunity is known to several post-colonial common law countries. 
    • Australia (1981), Canada (1983), and South Africa (1993) have enacted laws that criminalise marital rape.
    • In the United Kingdom, the House of Lords overturned the exception in 1991. 
      • In their landmark decision in the case known as R v R, the Lords took the view that the time had “arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim”. 
      • The European Court of Justice reviewed the ruling and upheld the decision of the Lords as a “foreseeable evolution” of the law.
      • Subsequently, in 2003 marital rape was outlawed by legislation in the UK.

    Way Ahead

    • The continuous exemption of marital rape from the purview of criminal law sustains the assumption of the wife as exclusive property of the husband.
    • Can the state really enter the realm of the home?
      • It already does, in the cases of cruelty, divorce and dowry demands, then why leave the most atrocious and heinous crime outside the ambit of the State and laws. Why the area of marital rape remain beyond its pale? 
    • The immediate need is criminalization of marital rape under the Indian Penal Code.
    • There is also a need to educate the masses about this crime, as the real objective of criminalizing marital rape can only be achieved if the society acknowledges and challenges the prevailing myth that rape by one’s spouse is inconsequential

    Source: TH