Marital rape is the act of sexual intercourse with one’s spouse without the consent of the other spouse. Although it was once widely unrecognized by law and society as wrong or as a crime, it is now recognized as rape by many societies around the world. The Delhi High Court recently declined a plea seeking direction to the Centre to frame guidelines for registration of FIR for marital rape and laws to make it a ground for divorce. It said the issue of marital rape has to be dealt by the legislature and not the judiciary.

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Legal provisions:

• Currently marital rape is not a ground for a divorce in Hindu Marriage Act, 1955, Muslim Personal Law [Shariat] Application Act, 1937 and Special Marriage Act, 1954, it cannot be used as a ground for divorce and cruelty against husband.
• Section 375 of the IPC holds that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”
• No other statute or law recognises marital rape
• Victims only have recourse to civil remedies provided under the Protection of Women from Domestic Violence Act, 2005

Criminalisation of Marital Rape is necessary because:

• There are several studies to show the prevalence of non-consensual sex with their wives, and physically forcing their wives to have sex.
• Marriage is an equal-relationship contract and not a one-time consent to everything.
• The legal exception to the rape laws gives men unequal privilege.
• Marital rape victims suffer from long-lasting psychological scars.
• Exception under Section 375, violates Articles 14, 15, 19 and 21 of a woman.
• The patriarchal nature of Indian society, ingrains it in the minds of men that women are expected to comply when their husbands demand sex.
• The victim suffers physical abuse, and she also has to undergo mental trauma of her dignity being violated
• In the last 70 years, the exemption in Section 375 has remained untouched.
• The prevalence of Child marriages and in many cases women are forcefully married off
• The Justice Verma committee had recommended removing the exception made for marital rape in the law.
• The report ‘Status of Women in India’, by the high-level Pam Rajput committee of the Ministry of Woman and Child Development, criticised the legislature for its failure to criminalise marital rape
• Till date, 51 countries have criminalised marital rape, beginning with Poland in 1932.
• United Kingdom, whose common law was followed by India, made marital rape a criminal offence in 1991.

However, there are cons of criminalizing marital rape:

• It “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”.
• “Rising misuse of Section 498A of IPC”, known as the dowry law, “for harassing the husbands”.
• Other countries, mostly western, have criminalised marital rape does not necessarily mean India should also follow them blindly.
• Law Commission on Review of Rape Laws has examined the issue but not recommended the criminalisation of marital rape.
• What may appear to be marital rape to an individual wife, it may not appear so to others.
• There can be no lasting evidence in case of sexual acts between a man and his own wife
• Data from the National Crime Records Bureau and the National Family Health Surveys show that only about 0.6%, or one in 167 incidents of sexual violence by husbands, are reported.

Way forward:

• What constitutes marital rape and marital non-rape needs to be defined precisely before a view on its criminalisation is taken.
• Defining marital rape would call for a broad based consensus of the society.
• States should intervene in the matter, since criminal law is on the concurrent list and implemented by states —and given the vast diversity in cultures across states.
• Factors like literacy, lack of financial empowerment of the majority of females, mindset of the society, vast diversity, poverty, etc., should be considered carefully before taking any decision.
• The need for “moral and social awareness” to stop such an act.
• The recent privacy judgment by the Supreme Court is also set to play an important role. The right to bodily integrity is a crucial facet of Article 21.
• Timely medical care and rehabilitation, skill development and employment for facilitating economic independence of victims.
• Need for undertaking both legal and social reforms to deal with the menace of marital rape

Conclusion:        

A woman has a right to bodily integrity, sexual autonomy and reproductive choice. Only when individual rights are not sacrificed and two partners are treated equally shall marriage as an institution continue to survive.

Extra information: The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape:

• ‘Rape’ should be replaced by the term ‘sexual assault’.
• In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
• Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
• Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.