Marital Rape: The Legal Battle Continues
The legal battle to criminalise marital rape has suffered a setback with the Delhi High Court delivering a split verdict on a batch of petitions seeking the removal of an unjust exception in the rape laws, thus ensuring a future hearing in the Supreme Court. This decision sent shock waves across the country. The slow but hopeful evolution of the "concept of consent" before and during the act of intercourse was snubbed by a single stroke of the judiciary of India under the attained rights of the married partners. The shock waves of this decision were so strong that people from the social media world to the social world of every Gali-nukkad were seen struggling to process the magnitude of this decision and decide with clarity where to stand on the matter of marital rape.
Section 375 defines rape and lists seven notions of consent which, if vitiated, would constitute the offence of rape by a man. However, the provision contains an 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.” This exemption essentially allows a marital right to a husband who can with legal sanction exercise his right to consensual or non-consensual sex with his wife. The exemption is also under challenge before the Gujarat High Court on the grounds that it undermines consent of a woman based on her marital status. Separately, the Karnataka HC has allowed the framing of marital rape charges against a man despite the exemption in law.
The Centre initially defended the rape exception. In 2016, it had rejected the concept of marital rape, saying it “cannot be applied to the Indian context” due to various reasons, not least because of the “mindset of society to treat marriage as a sacrament”. But later told the court that it was reviewing the law, and that “wider deliberations are required on the issue”. Solicitor General Tushar Mehta brought to the court’s notice a 2019 committee set up by the Ministry of Home Affairs to review criminal laws in the country. The Delhi government argued in favour of retaining the marital rape exception. Its arguments spanned from protecting men from possible misuse of the law by wives, to protecting the institution of marriage.
According to the recently released National Family Health Survey 5 (2019-2021) report, 18 per cent of women in India are not able to say no to their husbands if they do not want to engage in sexual intercourse with them. The survey highlights that for nearly one-fifth of India's married women, their consent in sexual relations with their husbands is compromised. Six per cent of men aged 15-49 years believe they have the right to get angry with their wife, refuse financial support, use force to have sex and have sex with another woman if the wife refuses to have sex. Seventy-two per cent of men aged 15-49 years do not agree with any of the four aforementioned behaviours in the situation that their wives refuse to have sex with them. Nineteen per cent of men believe they have the right to get angry and reprimand their wives if they refuse to have sex.
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 in1991. Subsequently, in 2003 marital rape was outlawed by legislation in the UK. It is unfortunate that after the persistent expansion of fundamental rights, including women’s rights, as a result of long campaigns and struggles and judicial interventions, the country is still stuck on the issue of marital rape. In cases challenging a law’s constitutionality, the courts must grapple with questions of both social and political values, and their own role in the constitutional scheme. The legal battles will, of course, continue but this may nevertheless be a good moment to examine the issues that lie behind it.