MARITAL RAPE

Marital rape, a contentious issue in India, has sparked ongoing debates about the need to recognize and criminalize non-consensual sex within marriage. Recent developments highlight both the government’s stance and the perspectives of various legal bodies on whether marital rape should be considered a criminal offense.

Why in News?

  • Centre’s Position
    • The Centre argues that criminalizing non-consensual sex in marriage as “rape” would disrupt the institution of marriage, given its unique nature.
  • Legal Exception
    • Section 375 of the IPC exempts husbands from rape charges if the wife is over 15, with the government supporting this due to marital expectations.
  • Disproportionate Punishment
    • The Centre believes labeling marital non-consensual sex as “rape” is too harsh, though it agrees violations should still face legal consequences.
  • Balancing Rights
    • The government calls for balancing the wife’s consent with the husband’s marital rights, asserting current laws address these issues.

Views on Marital Rape by Different Institutions:

  • Law Commission of India:
    • In its 172nd Report, the Law Commission did not recommend criminalizing marital rape and maintained the exception under Section 375 of the IPC.
  • J.S. Verma Committee (2013):
    • The committee, formed post the Nirbhaya case, recommended making marital rape a criminal offense.
  • Indian Judiciary:
    • Kerala High Court (2021): Held that while marital rape isn’t recognized as a crime, it can be valid grounds for divorce.
    • Karnataka High Court: Ruled that a husband can be charged for rape if he forces his wife into sex.
    • Delhi High Court: Delivered a split opinion on marital rape—one judge favored striking down the exception as unconstitutional, while the other deferred the decision to the legislature.
    • Gujarat High Court (2017): Recognized the harmful effects of marital rape but held the husband liable only for outraging modesty and unnatural sex, as marital rape is not yet a crime.
  • Supreme Court:
  • Independent Thought vs. Union of India (2017): Criminalized sexual intercourse with a minor wife (aged 15-18), but did not address marital rape for adult women.

Arguments For and Against Criminalizing Marital Rape:

For Criminalizing:

  • Consent and Autonomy: Marriage doesn’t imply perpetual consent; individuals retain the right to refuse sex.
  • Addressing Gender Inequality: Recognizes and corrects historical gender imbalances within marriage.
  • Protection from Abuse: Criminalization offers legal protection to victims of domestic violence.
  • Closing Legal Loopholes: Acknowledges rape as a crime, regardless of the marital relationship.
  • Psychological Impact: Marital rape causes severe psychological and emotional harm.
  • Promoting Healthy Marriages: Laws promote relationships based on mutual respect and communication.

Against Criminalizing:

  • Cultural and Religious Considerations: Critics argue it interferes with cultural beliefs about marital authority.
  • Difficulty of Enforcement: Proving non-consensual sex in marriage could be complex due to lack of evidence.
  • Erosion of Family Values: Some fear it may undermine traditional family structures and values.
  • Presumption of False Accusations: There’s concern about misuse in divorce or custody battles.
  • Privacy and Intrusion: Opponents worry about state intrusion into private marital matters.
  • Potential Legal Abuse: Concerns about laws being exploited in contentious separations

International Precedence:

  • According to Amnesty International data, 77 out of 185 (42%) countries criminalise marital rape through legislation.
  • The first country to criminalise marital rape was the Soviet Union (1922) and the UK (1991) and the US (1993) were amongst the last Western nations to do so.

Way Forward:

  • State Intervention: The state already intervenes in matrimonial matters like dowry and cruelty, so it should also address marital rape.
  • Awareness Campaigns: Statutory reforms must be paired with public sensitization on consent, medical care, and victim rehabilitation.
  • Challenging Ownership Assumptions: Removing the marital rape exemption will counter the notion of a wife as the husband’s property.
  • Legislative Action: Advocate for laws criminalizing marital rape to protect victims.
  • Supreme Court Powers: The SC, using its authority under Article 142, can act if Parliament fails to amend the law, potentially striking down the exception to Section 375.

Criminalizing marital rape requires careful balancing of cultural values, individual rights, and legal frameworks to ensure justice and protection within marriages. Legislative action, combined with public awareness, can pave the way toward a society that upholds both personal autonomy and marital dignity.

Leave a Reply