Delhi HC brings back focus on India's marital rape exception
The Delhi High Court is hearing a batch of fresh petitions that challenge the exception given to marital rape under the Indian criminal law. The petitioners include RIT Foundation, the All India Democratic Women's Association (AIDWA), and a survivor of marital rape. Different central government regimes have, for years, swept the issue of criminalizing marital rape under the carpet.
Why does this story matter?
- Marital rape is not a crime in India.
- Section 375 of the Indian Penal Code (IPC) protects a man from punishment for forceful sexual intercourse with his wife.
- The law, however, says the wife should be at least 15 years of age.
- Rights groups say the law must be tweaked while the Centre argues that criminalizing marital rape will destabilize the institution of marriage.
Delhi HC division bench hearing pleas
The said pleas in the Delhi HC are being heard by a division bench, comprising Justice Rajiv Shakdher and Justice C Hari Shankar. During a recent hearing, Justice Shakdher said it is "difficult to appreciate that the offense affects an unmarried woman's dignity but does not affect a married woman's dignity." "Jurisdiction after jurisdiction" has held that marital rape is a crime, he stated.
'Sex worker can say no, why not a wife?'
Justice Shakdher further questioned that when a sex worker has the right to deny intercourse to a customer, why is a married woman devoid of it. "She (sex worker) can say no at any stage. Can a wife be placed on a lesser pedestal?"
Centre's take on the matter
Meanwhile, the Centre told the court it is considering a "constructive approach" toward the issue of criminalizing marital rape, and has invited suggestions for amendments in criminal laws. In response, the bench said it is a generic exercise and could take years. "If viz-a-viz (IPC Section) 375, you people have some suggestion, then we will consider that," the court said.
Rights groups highlight plight of Indian women
Since marital rape is not a crime, India's National Crime Records Bureau does not maintain statistics on the issue. However, the UN Population Fund found over two-thirds of married women in India, aged 15-49, have been beaten, raped, or forced to have sex. In fact, 20% of men admitted to committing sexual violence against their partner, according to International Men and Gender Equality Survey.
Panel recommended criminalizing marital rape years ago
In December 2012, a committee led by Justice (Retired) JS Verma was formed to recommend amendments to the Indian criminal law, in the aftermath of a gang-rape of a woman in Delhi. Among other suggestions, the panel had proposed a removal of the marital rape exception. However, despite assurances from politicians of various parties, there has been little headway toward that recommendation.
Centre concerned about potential misuse of law
Former Finance Minister P Chidambaram had said that all the recommendations of the JS Verma panel had been accepted. In 2014, the Indian National Congress-led central government was replaced by the Bharatiya Janata Party (BJP). But no serious efforts were made to criminalize marital rape. The Centre has, time and again, expressed concerns such a law may become a tool to harass married men.
100+ countries have criminalized marital rape
The so-called marital rape exception has been in place in India for well over a century, when the country was governed by British colonial-era laws. The idea behind the law was that consent for sex is "implied" in marriages. However, more than 100 countries have criminalized marital rape over the years. India remains among a handful of nations that are yet to do so.
'One side cannot dominate the other'
"There has to be equality in marriage and one side cannot be allowed to dominate the other. You cannot demand sexual service from your spouse," Professor Upendra Baxi, a top professor of law, told the BBC.