Relevance: GS-2: Laws for the protection and betterment of vulnerable sections.

Key Phrases: Delhi High Court verdict, The importance of consent, marital rape, IPC Section 375, Criminalization of marital rape, Domestic Violence Act, Justice J. S. Verma Committee, Section 498A of IPC.

Why in News?

• A split verdict in the Delhi High Court on the question of criminalising marital rape has reignited the controversy over legal protection for disregard of consent for sex within marriage.
• One of the judges struck down as unconstitutional the exception to Section 375 of the IPC, which says that intercourse by a man with his wife aged 18 or above is not rape even if it is without her consent.
• While the other judge rejected the plea to criminalise marital rape pointing out that any change in the law has to be carried out by the legislature since it requires consideration of social, cultural and legal aspects.

What is Marital Rape?

• Marital rape refers to the act of sexual intercourse with one's spouse without the spouse's consent. Marital rape is not a crime in Indian Jurisprudence. However, there has been growing clamour to Criminalise Marital rape in India.

IPC Section 375:

• IPC under Section 375 defines rape as follows:
  • A man is said to commit “rape” who has sexual intercourse with a woman under following circumstances
    • Against her will
    • Without her consent
    • With her consent, but the consent has obtained because of
    • Putting her in the fear of death
    • When the man knows that he is not her husband but she believes that he is her husband
    • Unsound mind or intoxication
    • With or without consent, when she is under 16 years of age
• However, the same section gave an exemption
• Exemption : Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape

Current Scenario:

• Marital rape has been impeached in more than 100 countries but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized.
• In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government should criminalize marital rape.
• The JS Verma committee set up in the aftermath of nationwide protests over the December 16, 2012 gang rape case had also recommended the same.
• As per the NCRB report, in India, a woman is raped every 16 minutes, and every four minutes, she experiences cruelty at the hands of her in-laws.
• National Family Health Survey (NFHS) shows that sexual violence is most often committed by individuals with whom women have an intimate relationship.
• The 2019-21 NFHS report shows that among ever-married women aged 18-49 who have ever experienced sexual violence, 83% report their current husband and 13% report a former husband as perpetrators.

Arguments against criminalising marital rape:

• Threat to the institution of marriage: Criminalisation of marital rape is often viewed as a threat to the institution of marriage, in which both the spouses have conjugal rights over each other.
• Conjugal rights: Section 9 of the Hindu Marriage Act gives either spouse in a marriage the legal right to "restitution of conjugal rights". But, recognition of conjugal rights to have sex with spouse does not give a licence to rape
• Misuse of the law is a big reason why several individuals, jurists and even men’s rights activists have raised alarm over the criminalisation of marital rape. According to some activists, as huge as 85% of dowry cases turn out to be false and India cannot deal with another failed catastrophic law that will amount to “legal terrorism”.
• Burden of proof: The burden of proof is a hugely complex issue that has prevented marital rape to be criminalised. In the case of marital rape, one has to consider that intercourse is a part of any marriage. Now, if marital rape itself is criminalised, the question remains who would the burden of proof be on and what would that burden be.
• Gender Neutrality: Arguments to make the definition of ‘rape’ gender-neutral have been put forward on many occasions, and the same argument is put forward in the case of marital rapes too. Even if the exception of IPC section 375 is removed or criminal provisions are added to the Domestic Violence act, husbands will not be able to use those

Arguments in favour of Criminalisation of Marital rape:

• Problems with Domestic Violence Act: There are two problems with this act, due to which it is considered inadequate to deal with cases of marital rapes
  • While the term “sexual abuse” is mentioned, the act doesn’t explicitly define “rape” as is defined in Section 375 of the IPC.
  • The Domestic Violence act has been deemed as a “civil law” by the courts and thus the accused can get away without any jail term.
• Against the individual rights of the married women (Article 14 and 21):
  • A Married woman should have the same rights over her body as much as an unmarried woman does.
  • The marital exception violates equality before law, as well as deprives women of the right to trigger a prosecution for non-consensual sex.
  • It also violates Protection of Human Rights Act, 1993; and Convention on Elimination of All Forms of Discrimination Against Women
• Post Rape Trauma: Victims of marital rape undergo same trauma as in case of rape by strangers. Studies show that rape victims, either married or unmarried, undergo PTSD (post-traumatic stress disorder).
• Rape not ground for Divorce: As marital rape is not a ground for a divorce in any personal laws and even the Special Marriage Act, 1954, It cannot be used as a ground for divorce and cruelty against the husband Thus, the women remain helpless and keep suffering in silence.
• Absence of consent is the core ingredient of rape: The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being.
• Threat to sexual autonomy: It discriminates among women based on their marital status and robs them of sexual agency and autonomy.
• Flawed Assumptions of marriage:
  • Consent in perpetuity: It is an assumption that when a couple gets married, the woman gives consent in perpetuity to her husband.
  • The assumption also is that the woman cannot simply retract the consent that she gave her husband at the time or marriage.
  • The expectation of sex: The other logic is that there is a reasonable expectation of sex in a marriage and therefore, the wife is obligated to fulfil that expectation of the husband.
• Governed by 162-year-old colonial law: IPC section 375

Way Forward:

• Whether the legislative route is more appropriate in making marital rape a criminal offence is a matter of detail. What is important is that sexual violence has no place in society, and the institution of marriage is no exception.
• 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 consensus of society.
• The awareness among the people of society with stringent, accountable and well implemented laws shall be a boon to the victims and help to cure the deeply rooted sexism, patriarchal structure, asymmetrical relation within a marriage and in real sense provide justice and development of the suppressed.
• Every landmark law has been a game changer within a society that got accepted with time. From abolition of Sati to legalizing LGBT; the obligation of the Government is to fulfill the objectives of the Constitution of India to protect its citizens by providing them a safe home ensuing welfare and justice.

Source: The Hindu

Mains Question:

Q. “The rape laws in India have undergone several changes since pre-independence. But the exception to marital rape has always remained.” Critically examine.

Q. “Marital rape exception violates married women's right to dignity, personal and sexual autonomy and her right to self-expression.” Analyse.