Trial for marital rape

The Karnataka High Court’s rejection of a petition filed by a husband to drop charges of rape levelled against him by his wife lends a significant dimension to the ongoing debate and legal proceedings on the petitions for criminalising marital rape. Section 375 of the Indian Penal Code, that defines rape, carries an exemption that sexual intercourse or sexual acts by a man with his wife, if she is above 18 years of age, is not rape. The single-judge Bench did not strike down the marital rape accusation — the constitutionality of which is under challenge before the Delhi and Gujarat High Courts — but forced the husband to face trial.

Justice Nagaprasanna’s call to lawmakers to hear the ‘voices of silence’ came with stark observations such as ‘rape is rape’, the need to efface the ‘regressive thought that husbands are the rulers of their wives, their body, mind and soul’, and how the institution of marriage does not and cannot ‘confer any special male privilege or licence for unleashing of a brutal beast’. The case before a Special Bench of the Delhi High Court against marital rape immunity has put the spotlight on issues of violation of a married woman’s right to say no, state control on female sexual autonomy and correcting the historical prejudices in law.

Domestic violence is hugely entrenched in the country. Surveys point out that about 99 per cent of sexual violence cases go unreported and that the average Indian woman is 17 times more likely to face sexual violence from her husband than from others. Like the UN Committee on Elimination of Discrimination Against Women in 2013, the Justice Verma Committee set up in the aftermath of the Nirbhaya gangrape had also recommended criminalisation of marital rape. Changing the law, it is being argued, would signal legal consequences for husbands, even if most cases of domestic violence are not reported, and fewer are brought to trial.