Context:

In a significant legal discourse, the central government has opposed petitions to criminalize marital rape under the newly enacted criminal laws. The government argues that making marital rape a crime could have a profound impact on the institution of marriage.

• The remarks were made during a Supreme Court hearing, where the government stressed the importance of a comprehensive approach, rather than just a legal one, in addressing issues of marital rape.

About martial rape in Bharatiya Nyaya Sanhita (BNS):

• Marital rape refers to non-consensual sexual acts committed by a spouse against their partner. Under the earlier IPC framework, specifically Exception 2 of Section 375, sexual acts by a husband with his wife—provided the wife is not a minor—were not classified as rape.
• This provision was criticised for perpetuating gender inequality and denying women their rights within marriage.
• The Bharatiya Nyaya Sanhita (BNS), which took effect in July 2023, retained the exemption for marital rape, now categorized under Section 63. This has sparked widespread debate about the implications of keeping such a provision in today's Indian society, where discussions about women's rights and consent are increasingly important.

Government stance on marital rape:

The Centre opposes classifying marital rape as ‘rape,’ arguing that the term is “excessively harsh and therefore disproportionate” in the context of marriage. They contend that labeling non-consensual acts within marriage as ‘rape’ could destabilize the institution of marriage and disrupt conjugal relationships.

Key points of the Centre’s argument include:

• Acknowledgment of Consent: While recognizing that a husband does not have the right to violate his wife’s consent, the government believes that the complexities of marriage differentiate non-consensual sex within marriage from similar acts outside it.
•  Existing Legal Protections: The existing legal provisions, including Sections 354, 354A, 354B, and 498A of the Indian Penal Code (IPC), as well as the Protection of Women from Domestic Violence Act, 2005, already safeguard a wife’s consent within marriage.
• State Opinions: A majority of states surveyed favored retaining the marital rape exception, with only Karnataka, Tripura, and Delhi opposing it.
• Parliamentary Responsibility: The marital rape is a matter for Parliament to address, highlighting that the current law under Section 63(2) of the Bharatiya Nyaya Sanhita (BNS) and Section 375 of the IPC includes a critical exemption that allows husbands to engage in sexual acts with their wives without facing criminal liability.

Arguments against Criminalising Marital Rape:

• Threat to the Institution of Marriage:  Criminalizing marital rape is often seen as a threat to marriage, where both spouses have conjugal rights over each other.
• Misuse of the Law: Concerns about potential misuse of the law are a significant reason why many individuals, jurists, and men’s rights activists oppose criminalizing marital rape. Some activists argue that as many as 85% of dowry cases are false, and they believe India cannot afford another law that could lead to what they term “legal terrorism.”
• Burden of Proof:  The burden of proof presents a complex issue that has hindered the criminalization of marital rape. Since intercourse is considered a normal part of marriage, it raises questions about who would bear the burden of proof and what that burden would entail in cases of alleged marital rape.

Arguments in Favor of Criminalising Marital Rape:

Individual Rights of Married Women (Articles 14 and 21): Married women should have the same rights over their bodies as unmarried women. The marital exception violates the principle of equality before the law and deprives women of the right to initiate prosecution for non-consensual sex.

• This stance is also inconsistent with the Protection of Human Rights Act, 1993, and the Convention on the Elimination of All Forms of Discrimination Against Women.

Post-Rape Trauma: Victims of marital rape experience the same trauma as those raped by strangers. Studies indicate that both married and unmarried rape victims often suffer from PTSD (post-traumatic stress disorder).

Rape Not a Ground for Divorce: Since marital rape is not recognized as grounds for divorce in personal laws or under the Special Marriage Act, 1954, women cannot use it to argue for divorce or claim cruelty against their husbands. This leaves many women feeling helpless and trapped in abusive situations.

Absence of Consent as Core Ingredient of Rape: The right to withdraw consent at any time is fundamental to a woman’s right to life and liberty, encompassing her ability to protect her physical and mental well-being.

Threat to Sexual Autonomy: The current stance discriminates against women based on marital status, undermining their sexual agency and autonomy.

Flawed Assumptions of Marriage:

•   Consent in Perpetuity: There is an assumption that marriage grants perpetual consent to the husband, which fails to acknowledge that a woman can withdraw her consent at any time.
•   Retracting Consent: It is incorrectly assumed that a woman cannot retract the consent she gave at the time of marriage.

Key Statistics on Marital Rape in India:

India is one of the few countries where marital rape is still not criminalized, despite recommendations from the UN Committee on the Elimination of Discrimination against Women (CEDAW) and the JS Verma Committee.

·        Global Context: Over 100 countries have already criminalized marital rape.

·        Frequency of Rape: A woman is raped every 16 minutes in India.

·        Perpetrator Statistics: Among ever-married women aged 18-49 who have experienced sexual violence, 83% reported that their current husband was the perpetrator.

Conclusion

The discussion surrounding the criminalisation of marital rape is multifaceted, encompassing legal, social, and moral dimensions. While concerns about the impact on marriage and potential misuse of the law are valid, they must not be weighed against the fundamental rights of women to autonomy, equality, and protection from violence. As society continues to evolve, so laws that govern personal relationships should be made which encompass contemporary values and respect the dignity of all individuals.