Two judges of the Delhi High Court gave a split verdict on the question of criminalising rape within marriage, leaving the law unchanged.

Seems like the matter will now be referred to a larger bench.

What is Marital Rape?

• Marital rape is the act of sexual intercourse with one’s spouse without her consent.
• It is no different manifestation of domestic violence and sexual abuse.
• It is often a chronic form of violence for the victim which takes place within abusive relations.

What is the news?

• One of the Judge struck down as unconstitutional the exception to Section 375 of the IPC, which says that sexual intercourse by a man with his wife aged 18 and above is not rape even if it is without her consent.
• However, another Judge said that issue requires consideration of social, cultural and legal aspects.

Outcome of the split verdict: Preserving the institution of marriage

The Centre’s concern that criminalising marital rape may destabilise the institution of marriage is a “legitimate” one, said the HC.

• Spousal intimacy: In a marriage, conjugal expectation is a two-way street, where “consent is given as a part of spousal intimacy although the will to engage may be absent”.
• Need for written agreement: If every such case is treated as marital rape, then the only way partners in a marriage may survive would be by drawing up a detailed written agreement.
• Burden of evidentiary record: This would lead to creating a detailed evidentiary record of every act of intimacy and/or by inviting a third party to act as a witness.
• Defying marital obligations: The HC said that marriage was accompanied by obligations that the partners had to bear, including conjugal expectations, financial obligations and, finally, duty towards progeny.
• Sexual liberty of spouses: The bench also underlined the signs of injury on a partner need not necessarily mean there had been non-consensual sex as “in the age of sexual liberation”, injuries could be a sign of “passion”.
• Cruelty not rape: Forced sexual intercourse between a husband and wife cannot be treated as rape. At worst, it can be treated as sexual abuse found in Section 3 of the Domestic Violence Act.
• Clash of ego: A wife cannot prescribe a particular punishment that can be imposed on the husband ‘to satisfy her ego’,” the judge said.

Then what is the remedy for such ‘Marital Rapes’?

• Section 3 of the Protection of Women from Domestic Violence Act, 2005 provides a definition for domestic violence, which includes physical, sexual, verbal and emotional abuse.

General reasons for disapproval of this concept

• The reluctance to define non-consensual sex between married couples as a crime and to prosecute has been attributed to:

1. Traditional views of marriage
2. Interpretations of religious doctrines
3. Ideas about male and female sexuality
4. Cultural expectations of subordination of a wife to her husband

• It is widely held that a husband cannot be guilty of any sexual act committed by himself upon his lawful wife their on account of their mutual matrimonial consent.

Why it must be a crime?

• Associated physical violence: Rape by a spouse, partner or ex-partner is more often associated with physical violence.
• Mental harassment: There is research showing that marital rape can be more emotionally and physically damaging than rape by a stranger.
• Compulsive relationship: Marital rape may occur as part of an abusive relationship.
• Revengeful nature: Furthermore, marital rape is rarely a one-time event, but a repeated if not frequent occurrence.
• Obligation on women: In the case of marital rape the victim often has no choice but to continue living with their spouse.

Violation of fundamental rights

• Marital rape is considered as the violation of FR guaranteed under Article 14 of the Indian constitution which guarantees the equal protection of laws to all persons.
• By depriving married women of an effective penal remedy against forced sexual intercourse, it violates their right to privacy and bodily integrity, aspects of the right to life and personal liberty under Article 21.

Global examples

• Marital rape immunity is known in several post-colonial common law countries.
• Australia (1981), Canada (1983), and South Africa (1993) have enacted laws that criminalise marital rape.
• The UK in 1991 arrived at a consensus that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.
• However, in 2003 marital rape was outlawed by legislation in the UK.

Problems in prosecuting marital rape

• Lack of awareness: A lack of public awareness, as well as reluctance or outright refusal of authorities to prosecute is common globally.
• Gender norms: Additionally, gender norms that place wives in subservient positions to their husbands, make it more difficult for women to recognize such rape.
• Acceptability of the concept: Another problem results from prevailing social norms that exist.

Present regulations in India

• Indian Penal Code criminalizes rape in most cases, although marital rape is not illegal when the woman is over the age of 18.
• However, until 2017, men married to those between 15 and 18 could not be convicted of rape.
• Marital rape of an adult wife, who is unofficially or officially separated, is a criminal offence punishable by 2 to 7 year in prison; it is not dealt by normal rape laws which stipulate the possibility of a death sentence.
• According to the Protection of Women From Domestic Violence Act (2005), other married women subject to such crime by their husband may demand for financial compensation.
• They also have the right to continue to live in their marital household if they wish, or may approach shelter or aid homes.

However, marital rape is still not a criminal offence in this case and is only a misdemeanour.

Arguments against criminalization

• Subjective: It is very subjective and intricate to determine whether consent was acquired or not.
• Prone to Misuse: If marital rape is criminalized without adequate safeguards it could be misused like the current dowry law by the dissatisfied wives to harass and torture their Husbands.
• Burden on Judiciary: It will increase the burden of judiciary which otherwise may serve other more important causes.

Way forward

• Sanctioning marital rape is an acknowledgment of the woman’s right to self-determination (i.e., control) of all matters relating to her body.
• In the absence of any concrete law, the judiciary always finds it difficult to decide the matter of domestic rape in the absence of solid evidence.
• The main purpose of marriage is procreation, and sometimes divorce is sought on the ground of non-consummation of marriage.
• Before giving a final interpretation, the judiciary must balance the rights and duties of both partners.

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