Rising voices for criminalizing marital rape in India! Will Court comply?

 Marital rape is not criminalized in India. This is absolutely unjust on women. The law giving immunity to husbands on marital rape has been challenged by four petitions. This lawsuit has brought into focus certain not good things of Indian law. It tends to consider females as just a physical body to be used by their husbands with or without their consent. Crucial issues play here namely those concerning consent, how state exerts control over female sexual autonomy, and deep-rooted cultural and historical prejudices in society. Law has failed to rectify it to date. On one hand, they talk about woman empowerment and on the other hand, they do not deem it right to criminalize marital rape. This double standards and hypocrisy stands challenged in court now. 

Delhi High Court hears challenge to marital rape immunity

It is sad that a country that leaves no stone unturned to tell the world that it has equal rights to women has failed to criminalize marital rape. It continues unabated in many families with women being the sufferer. Its constitutional validity is under question in the modern era. This point is put as an exception to Section 375 of the Indian Penal Code that deals with rape. Law says:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

All India Democratic Women’s Association is one of the petitioners. Amicus curiae Raajshekhar Rao and Rebecca John, senior advocates will also put forth their points. They feel that this exemption is unconstitutional and undermines consent of a woman based on her marital status.

Also read here: Why marital rape not criminalized yet in India?

The law is based on two outdated concepts: that woman is her husband's property and is duty-bound to fulfil his desire for sex. 

Why is the exemption continuing despite being unconstitutional?

The legal immunity to a man in India is said to be to preserve the institution of a family. But is it right to preserve something that has lost its meaning due to demeaning of a woman's right to say no to sex? Can you sacrifice a woman's right just to preserve a family? How long should a woman bow down to the wrongs of a husband? Does she have no dignity of her own? 

The reasoning given is that a woman would use it to falsely implicate her husband. But what are the chances of a woman doing so as against a man doing marital rape? Definitely, the chances of latter are more than the former!!! The misuse of criminalizing marital rape is being over exaggerated. In countries where marital rape is criminal, it has not been misused. Then why solely Indian women would misuse it???

Other countries on marital rape law

UK in 1991, Canada in 1983, South Africa in 1993, Australia in 1981 enacted laws to criminalize marital rape. No immunity is given to husband for it. When they can do it, why not India?

Every person's right to equality, the right to life with dignity, personhood, sexual, and personal autonomy are fundamental rights and they are protected under Articles 14, 19 and 21 of the Constitution respectively. So how can court justify encroachment on these rights of a married woman by her husband? It differentiates between married and unmarried woman and this is not right. 

How would the law stand in case of procreation by the couple? How can state encroach a fundamental right just to preserve family? Besides, procreation nowadays can be done without sex. It is expensive and out of reach of common people. But IVF and surrogacy can assist in procreation without sex!!! Modern medical advances have made this possible. To bundle sex and procreation in modern days would not be absolutely right. 

Delhi government is in favour of continuing the immunity. It has stated that women can seek other recourse if they are victims of marital rape. They can file for divorce or make a case of domestic violence. In those cases, it implies that a woman will not get justice in a marriage but will have to break the marriage to get justice!!!

The J S Verma Committee in 2013 has asked for removal of this immunity to husband. The governments did not act on it. But recently, Rahul Gandhi has tweeted in favour of removal of marital rape immunity. 

Prof Sandra Fredman of the University of Oxford had suggested that “training and awareness programmes should be provided to ensure that all levels of the criminal justice system and ordinary people are aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife”.