Trigger Warning: Mention of rape and sexual assault
Recently, the Supreme Court of India triggered a debate on marital rape when it asked, “Can sex between a husband and wife be considered as rape?”.
The government, for long, has maintained that India is not ready to criminalise marital rape owing to various reasons such as poverty, illiteracy and religious beliefs. Marital rape, according to the Gujarat High Court, is “unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. It is a non-consensual act of violent perversion by a husband against the wife where she is abused physically and sexually.”
In India, within the institution of marriage, it is legal for a man to rape his wife and this legality is laid down in Exception 2 to Section 375 of the Indian Penal Code (IPC). The collection of conclusive data on Marital rape is incredibly difficult due to its inherent complexities, but it is pertinent to note that women are 17 times more likely to face “sexual violence” at the hands of their husbands according to a government report.
Recently, a division bench of the Kerala High Court said that treating a wife’s body as something that is owed to the husband and committing sexual acts against her will is nothing but marital rape.
The situation in India has been worrisome especially during lockdowns. The pandemic witnessed an increase in gendered violence and for many women, staying at home is not the safest option.
According to a report there may have been exponential increase in rape cases in South Asia, including India during the pandemic and while the UN urged governments to take note of the increasing instances of domestic violence, during the lockdown, we saw a rise in the number of fresh complaints regarding the same before the National Commission for Women.
This has changed the dynamics of relationships and families. Marital rape is a crime that often goes unreported, creating a shadow pandemic of abuse for women, since it has not been criminalised yet. This gives the male partner the “license to rape” within the relationship.
The lockdown has exacerbated this predicament of the survivors and another relevant UN report suggests that staying at home might be the most dangerous affair for many women who are essentially trapped with their abusers in the domestic space.
India is one of the 36 countries in the world where marital rape is not an offence, but an exception to rape. Although there have been efforts to omit the exception through the recommendation of the 42nd Law Commission Report, the Justice Verma Committee Report, there has been no affirmative action on this yet.
Member of Parliament Dr. Shashi Tharoor introduced a private member bill to criminalise marital rape which did not get approval. Very often, the sentiment is against the recognition of marital rape because it “may amount to excessive interference with the marital relationship” and the judiciary has always left the question to the wisdom of the legislature even though it violates Article 21 of the constitution.
It must also be noted that India is a party to the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and has an international obligation to prevent the discrimination against women based on gender.
Marital rape violates the consent, bodily integrity and emotional coherence of the woman. Women constantly live in the fear of being subjected to sexual violence in the house and this, as many reports suggest, has increased rapidly when they are confined in the same house with the husband due to the continuing lockdowns.
As a means of immediate relief, there are various helplines and remedies survivors can make use of, but the fundamental problem still stands unaddressed -the notion of ‘implied consent’ in marriage. The fact that marital rape remains de-criminalised is testimony to how women are still considered as the property of the husband, and how we often place the sanctity of the institution of family, even if it is built on violence against women.
A petition is pending before the Delhi High Court challenging constitutional validity of the exception under section 375 but the declaration of the right to privacy as a fundamental right may add new challenges in the effort to criminalise marital rape
Any law legalising forced sexual relationships must be declared unconstitutional and struck down, there cannot be two ways about that.
Anubhav is an LL.M. student in Constitutional Law at Maharashtra National Law University, Aurangabad. He specialises in Constitutional, Human Rights and Energy Laws. You may find him on Twitter and Instagram