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Approach:

  1. Introduction – facts on marital rapes in India.
  2. Provisions of Section 375 of IPC on marital rapes.
  3. Highlight 1-2 case judgements.
  4. Challenges in criminalising marital rapes.
  5. Any committee recommendations to deal with this issue.
  6. Conclusion.

According to the UN Women’s 2011 report, out of 179 countries for which data was available, 52 had amended their legislation to explicitly make marital rape a criminal offense. However, India is one of the countries where marital rape is yet to be even recognized. Recently, the Kerala High Court held that acts of sexual perversions of a husband against his wife amounted to (mental) cruelty and was, therefore, a good ground to claim divorce (since marital rape is not a punishable offence).

The reality is that In a study by National Health and Family Survey (NFHS-4) for the year 2015-16, 5.6% of women have been reported victims under the category of “physically forced her to have sexual intercourse with husbands even when she did not want to”.

Section 375 of the Indian Penal Code (IPC) and Marital rape:

  • Section 375: This section provides the definition of rape. Under this, a man is said to commit “rape” who had sexual intercourse with a woman under certain circumstances. This section also specifies the circumstances like against her will, without her consent, etc.
  • Exception to Section 375: This section provides that sexual intercourse by a man with his own wife (provided that wife is over the age of 18) would not amount to the offence of rape. This is based on the premise that all sex within marriage is consensual.

Few court judgements on marital rape :

  • Nimeshbhai Bharatbhai Desai vs State of Gujarat (2017) case: In this case, the Gujarat High Court elaborately dealt with the issue of marital rape. The court stated that “making wife rape illegal or an offense will remove the destructive attitudes that promote the marital rape”; however, due to the non-recognition of marital rape as a crime, the court held that the husband is liable only for outraging her modesty and unnatural sex.
  • Independent Thought v. Union of India (2017) case: In this case, the SC has criminalised sexual intercourse with a minor wife aged between 15 and 18 years. But, the SC refused to delve into the question of marital rape of adult women while examining an exception to Section 375 (rape) of the Indian Penal Code (IPC) which allows a man to force sex on his wife. The Court restricted marital rape cases to minors to bring parity between IPC and POCSO 2012.

Challenges in criminalising marital rape:

  • There are issues as these crimes are committed in a space where there are no eyewitnesses. But this is the same for other crimes of Rape and POCSO.
  • It will further increase the threat to a woman’s life by her husband and her in-laws. Any attempt to go against them may lead to further atrocities.
  • Institution of the family: Mostly husbands get protection in the name of marriage as it is considered as a sacrosanct institution.
  • In 2018, the central government had filed an affidavit in Delhi High Court, arguing that marital rape should not be criminalized, on the ground that it may “destabilize the institution of marriage”.
  • Societal mindset: Every strata of the society is structured in a manner to be insensitive against marital rape crimes.
  • False cases: Dissatisfied, angry, revengeful wives might charge their innocent husbands with the offense of marital rape. Further, it will be difficult for husbands to prove their innocence.
  • Due to the near impossibility of proving marital rape, and false cases, its criminalisation would only serve as an increased burden to the already overburdened legal system.

How to tackle this issue ? : Implementing the recommendations of the Justice Verma Committee, constituted in 2012 with an objective to strengthen the anti-rape laws in the country. The committee observed that Marital rape is a criminal offence in South Africa, Australia, and Canada, among other countries. The committee strongly recommended that the exception for marital rape be removed.

The Committee also highlighted the recommendations made by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee in respect of India in 2007. The CEDAW asked for “widening the definition of rape to reflect the realities of sexual abuse experienced by women, and to remove the exception to marital rape from the definition of rape”.

So, the time is ripe for the Parliament to legislate a law bringing the necessary changes.

Marriage in modern times is regarded as a partnership of equals. It is an association of two individuals, each of whom has separate integrity and dignity. The violation of the bodily integrity of a woman, therefore, is a clear violation of Article 21.

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