The Delhi High Court delivered a split verdict on decriminalizing marital rape in the
country.
The debate revolved around the validity of the Exception 2 of Section 375 which states
that “sexual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape”. In October 2017, the Supreme Court of India
increased the age to 18 years.
Background:
The need to remove this marital rape exception was rejected by the Law Commission
of India in 2000, while considering several proposals to reform India's laws on sexual
violence.
Justice JS Verma Committee, set up after the Nirbhaya gang rape 2012, made a
recommendation for criminalizing marital rape. However, the suggestion was not
implemented.
The Domestic Violence Act, 2005 hints at marital rape by any form of sexual abuse in
a live-in or marriage relationship. However, it only provides for civil remedies.
There is no way for marital rape victims in India to initiate criminal proceedings against
their perpetrator.
The first petitions to criminalize marital rape were filed in Delhi High Court in 2015.
In 2017, the central government filed an affidavit in the case, saying that criminalizing
marital rape “may destabilize the institution of marriage” and become a potential tool
for harassing husbands.
The National Family Health Survey-5 states that 29.3 per cent married women
experience spousal physical and sexual violence
Laws around the world:
According to Amnesty International data, 77 out of 185 (42%) countries criminalize
marital rape through legislation.
Ten countries namely Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman,
Singapore, Sri Lanka and Tanzania expressly allow marital rape of a woman or a girl
by her husband. About a dozen countries allow rapists to avoid prosecution by marrying
their victims.
The United Nations has urged countries to end marital rape by closing legal loopholes,
saying that “the home is one of the most dangerous places for women”.
Sociological analysis:
Flavia Agnes highlights how in our male-dominant society, ridden with orthodox
patriarchal values, women’s sexual oppression is reinforced by rationalizing the
chastity of marriage.
She further adds that the concept of treating marriage as a sacrament is not legally
tenable as Hindu marriages stopped being treated as sacrosanct half a century ago with
the formulation of Hindu Personal laws and Muslim marriages were always contractual
in nature.
Pratiksha Baxi, while analyzing the texts of Lok-Sabha debates around Rape laws
observes that the aim of these debates were not merely to uphold the right of bodily
autonomy, but to formulate the threshold of “acceptable levels of violence against
women” and to consequently punish any breach of contract between the masculinist
state and all men.
Zoya Hussain writes that the idea that on marriage, woman gives consent held by her
husband in perpetuity (lasting forever) which she cannot withdraw stems from a
colonial era idea that a woman is the property of her man.
