Explained: Why A Law Against Marital Rape Is An Idea Whose Time Has Come

Perhaps this is the first time a high court is hearing a plea seeking to declare marital rape as a crime.

Ritika Jain
Update: 2022-01-21 10:50 GMT

The ongoing hearing before the Delhi High Court on the issue of criminalizing marital rape has garnered reactions on both sides of the aisle. Even as supporters of women rights argue that India must join the 150 other countries in criminalizing marital rape, many who oppose this plea have declared a 'strike' on marriages.

The Delhi High Court is hearing a batch of four pleas that have challenged Exception 2 to Section 375 of the India Penal Code (IPC) which says: "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 Gujarat High Court on December 15 said it was time it decided on the constitutionality of the 2nd exemption of the rape laws.

The debate on marital rape is not new. In fact, the ongoing hearing in the Delhi High Court is the second round of arguments on the same plea. RIT Foundation, the lead petitioner, in this case, had filed this petition in January 2015. The arguments, in this case, were almost over before proceedings were halted due to the COVID related pandemic. The ongoing hearing in the high court is a resumption of the stalled hearing.

Also Read: Explained: The Debate Surrounding the Laws On Marital Rape In India

An Idea whose time has come

The Supreme Court and various high courts have given contradictory opinions on marital rape on an individual case by case basis; however, the Delhi High Court hearing is perhaps the first time the issue is being tackled head-on.

The Gujarat High Court, which issued notice on a similar plea on December 15, 2021, said it was "high time" that one undertook the "exercise of considering, whether the exception-2 to Section 375 of the IPC could be termed as manifestly arbitrary and makes a woman's fundamental right to sexual autonomy subject to the whims of her husband." In a 2018 judgment Justice JB Pardiwala—he also issued notice the December notice—has observed that marital rape was a "widespread problem" and that it ought to be a crime.

Even the Punjab and Haryana High Court in August 2021 issued notice on the legal validity permitting a wife to file an FIR accusing her husband of rape.

"It is 2022 and we are still discussing the criminalisation of marital rape. I think, it is one of those ideas whose time has come. We have been talking about it for so long now that it's time the courts conclusively decide on this issue in the absence of any legislative action," said Leah Verghese, a research manager at Daksh (a civil organization involved with research and promotion accountability in governance).

The National Crime Records Bureau (NCRB) does not have any statistics for instances of marital rape, because it is not a crime. But one should consider data from the National Family Health Survey (NHFS)—conducted by the Health and Family Welfare Ministry—to understand the menace of sexual assault women face by those intimately known to them.

According to the 2019-2020 NHFS survey report, almost 29.3% of women between the ages of 18-49 face spousal violence which could be physical or sexual. 1.5% of women have faced spousal violence before they even turn 18.

According to its 2015-2016 survey report, 33% of married women have experienced physical, sexual, or emotional spousal violence. The most common type of spousal violence is physical violence (30%), followed by emotional violence (14%). 7% of married women have experienced spousal sexual violence.

The NHFS 2015-2016 survey report further revealed that 83% of married women between 15-49 years who suffered sexual abuse blamed their spouse as their perpetrator. 7% of the women said it was a former spouse. The most common reason given for the violence was forced sex, where the husband exerted physical force to have sexual intercourse against his wife's will.

"Ever-married women's ever experience of spousal physical or sexual violence has declined from 37 per cent in NFHS-3 (2005-2006) to 31 per cent in NFHS-4 (2015-2016); however, there has been no change in women's experience of spousal physical or sexual violence in the 12 months preceding each survey (24% in both NFHS-3 and NFHS-4)," the 2015-2016 report read.

Also Read: Marital Rape Is Cruelty, Good Ground For Divorce: Kerala HC

Can married women suffering sexual abuse file complaints against their husbands?

The answer is yes. Even though marital rape is not a crime, it is considered to be grounds for cruelty. Women who suffer sexual abuse at the hands of their husbands can file for divorce citing marital cruelty. The Kerala High Court on July 30, 2021, ruled that a husband behaving as though his wife's body belongs to him and committing sexual acts against her will is nothing but marital rape. Though marital rape is not penalized, it is a good ground to claim divorce, the high court had said.

However, this is a civil remedy and not a crime.

Also Read: Rape Laws in India: All You Need To Know

Sexual autonomy for women, misuse of the law or destabilization of the institution of marriage

There are many parties arguing the case on marital rape before the Delhi High Court.

Women rights champions say that striking down the exception to the rape laws will ensure women's bodily integrity. Senior advocate Rebecca John, who is appearing as an Amicus Curiae (a friend of the court) in this matter, argued that a class of individuals who enjoyed legal immunity from prosecution will now lose it if the courts declared the exception as unconstitutional. "That is not a creation of new offence. It's simply lifting of immunity from prosecution," she had said.

"Marital rape is the biggest form of sexual violence which happens in the confines of our homes. How many times does rape take place in the institution of marriage and is never reported? This figure is not reported or analysed," senior advocate Colin Gonsalves said while representing a victim of marital rape.

The men's welfare association seeking the retention of this law, say men will be vulnerable to women's misuse of the rape law if the exception goes away. They have challenged the plea seeking to declare marital rape a crime before the high courts of Delhi and Gujarat.

The Centre has also opposed the motion to strike out the exception. The BJP government has argued that marriage in India is sacred, and hence the concept of marital rape cannot be applied here.

"It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including the level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, the mindset of the society to treat the marriage as a sacrament," Minister of State for Home, Haribhai Parathibhai Chaudhary told the Parliament in response to a question posed by DMK MP Kanimozhi.

In 2018 during pre-pandemic times, when Gita Mittal, the then acting chief justice of Delhi High Court, was hearing this case the Centre had filed an affidavit arguing that declaring marital rape as a crime would "destabilise the institution of marriage and an easy tool for harassing the husbands".

Three years on, the Centre is still reluctant to argue on this issue when it sought "reasonable time" to file their answer before the high court. Solicitor General Tushar Mehta on January 17 told the Delhi High Court that it was considering a more "constructive approach" and that it would be inappropriate to submit a "less discussed and consulted stand" on this issue.

Also Read: Bombay HC: Tejpal Verdict Like A Manual On How Rape Victim Must Behave

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