Not criminalising marital rape smacks of patriarchy

IN an affidavit before the Supreme Court, the Union government has taken a stand against the criminalisation of marital rape. In the affidavit before the apex court, the Home Ministry mentioned that a man has no fundamental right to force sex on his wife as there are enough laws to protect women against sexual violence and that criminalisation of marital rape would be an extremely “harsh measure.”

The Supreme Court is hearing a number of petitions seeking to amend the British-era law that a man cannot be prosecuted for rape within marriage, even though violence within marriage is rampant in India. According to a recent government survey, one in every 25 women has faced sexual violence from their husbands. In January 2023, the Supreme Court appointed two advocates as nodal counsels to streamline the proceedings by compiling a common document of relevant materials from all parties.

Currently, marital rape is outlawed in more than a hundred countries around the world. It was outlawed in the Great Britain in 1991. India is one of the few countries, along with Pakistan, Afghanistan, and Saudi Arabia, where the marital rape law remains in force.

The Indian Government, in its affidavit, highlighted the fact that Parliament, in its wisdom, has deliberately chosen to retain the marital rape exception and urges the court to defer to legislative judgment in such sensitive matters. Parliament is directly elected by the people and is aware of the understanding of the people in such delicate, sensitive issues. In the affidavit, the government urged the court to exercise judicial restraint and leave the regulation of marital relations to the wisdom of Parliament.

A number of petitions have been filed by different women's rights groups to strike down Section 375 of the IPC, which mentions several situations in which having sex is not considered rape, one of them being sex by a man with his wife, if she is not a minor.

According to the campaigners, this kind of argument is medieval and unacceptable in modern times. The United Nations, Human Rights Watch and Amnesty International have raised concerns about India's refusal to criminalise marital rape. The Delhi High Court has given a split verdict, which remains pending for the Supreme Court's final judgment, in which one judge has held that marital rape is “morally repugnant” while the other expressed the view that the exception to Section 375 of the IPC is valid and should continue to exist.

It has to be borne in mind that the marital exception in the IPC and the definition of marital rape were drafted on the basis of Victorian norms that did not recognise men and women as equal and merged the identity of husband and wife under the “Doctrine of coverture.”

Further, marital rape violates the right to equality enshrined in Article 14 of the Indian Constitution. Hence, it creates two classes of women based on their marital status and immunises action perpetrated by men against their wives. There is no other reason for the victimisation of women other than their married status. Moreover, it becomes difficult for married women to avoid abusive conditions because of their financial dependence on their husbands. The exemption is also violative of Article 21 of the Constitution, which includes the right to life and encompasses the right to health, privacy, and dignity. The Supreme Court has recognised the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right guaranteed by the Constitution.

In 2013, the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) strongly recommended that the Government of India criminalise marital rape. The forthcoming judicial review by the Supreme Court will provide an opportunity to eliminate a discriminatory legal relic that violates the fundamental rights enshrined in the Constitution and will help to transform women's lives and rights.

However, opponents of criminalising marital rape, including the government, argue that it would threaten the sanctity of family life, increase false allegations, disrupt marital harmony and undermine the institution of marriage itself. But these arguments seem to be presumptions, meant to obscure the harsh realities faced by countless women.