Context

Recently, the  Madhya Pradesh high court in Manish Sahu vs State of Madhya Pradesh held that any sexual intercourse or sexual act by the husband with his wife not below the age of 15 years is not a rape.

About Marital Rape

Marital Rape or spousal rape refers to engaging in sexual intercourse with one’s spouse without their consent.

• Legal Status in India: In India, there are no legal provisions that explicitly address “marital rape”.
  • India is among the 36 countries worldwide where marital rape remains unrecognized as a criminal offense.

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Status of Marital Rape in India

• Provision of Rape in Indian Penal Code: Section 375 of the Indian Penal Code delineates rape as a criminal act, stipulating that a man is guilty of rape if he engages in sexual intercourse with a woman without her consent or if she is a minor.
  • Nonetheless, Exception 2 to Section 375 states that sexual intercourse by a man with his wife, provided she is not under fifteen years of age, does not constitute rape.
• Supreme Court Ruling : In a significant 2018 ruling, the Supreme Court of India determined that sexual intercourse with a wife aged between 15 and 18 would be classified as rape.
  • In September 2022, a landmark judgment by the Supreme Court affirmed women’s entitlement to safe abortions irrespective of marital status.
  • It determined that, under the Medical Termination of Pregnancy Act, the definition of rape should encompass marital rape.
• Legal Recourse for Marital Rape: For married women, the only legal recourse against non-consensual sex lies in civil provisions outlined in the Protection of Women from Domestic Violence Act or Section 498-A of the IPC, which addresses cruelty against a wife by her husband or his relatives.

Marital Rape Provisions Around the World

• Russia : In 1922, the Soviet Union, now Russia, became the first nation to criminalize rape and abolish the “marital exemption” from its rape laws.
• Countries that Have Criminalized Marital Rape:
• • United States: Since 1993, marital rape has been criminalized in all 50 states of the US, although laws vary by state.
  • United Kingdom: Marital rape has also been made a criminal offense in the UK, with potential sentences including life imprisonment.
  • South Africa: Marital rape has been illegal in South Africa since 1993.
  • Canada: Marital rape is punishable by law in Canada.

Arguments For Criminalizing Marital Rape

A marriage should not be viewed as a license for a husband to forcibly rape his wife with impunity.

• The doctrine of Coverture: The marital exception to the IPC’s definition of rape was drafted based on Victorian patriarchal norms that did not recognize men and women as equals.
• It did not allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.”
• Article 14: Indian women deserve to be treated equally under article 14 and an individual’s human rights do not deserve to be ignored by anyone, including by their spouse.
• Further, a married woman has the same right to control her own body as does an unmarried woman.
• Bodily Integrity is intrinsic to Article 21: A woman is entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy is an intrinsic part of Article 21 of the Constitution.
• Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21
• Rape not ground for Divorce; Marital rape is not a ground for a diverse 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. Rape is rape, irrespective of the identity of the perpetrator, and the age of the survivor.
• A woman who is raped by a stranger lives with a memory of a horrible attack; a woman who is raped by her husband lives with her rapist throughout her life
• Criminalizing marital rape: It will ensure that women remans safer from abusive spouses and they can recelve the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse
• Much of the developed world has criminalized It. The even United Kingdom, whose common law was followed by India, made marital rape a criminal offence in 1991,
• The JS  Verma committee set up in the Nirbhaya gang-rape case and the UN Committee on Elimination of Discrimination Against Women (CEDAW) in 2013 had recommended that the Indian government should criminalize marital rape.

Marital Rape Status in India

• Implementation issues: Criminalizing marital rape will create serious implementational issues like
• If all sexual acts by a man with his wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife who cannot always be trusted.
• What evidences the courts will rely upon in such circumstances, as there can be no lasting evidence in case of sexual acts between a man and his wife.

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Arguments Against Criminalizing Marital Rape in India

•  Destabilize marriage as an institution: It may create absolutely anarchy in families destabilizing the institution of marriage and thereby destroying the family platform which upholds family values and helps in sustaining the country.
  • Indian society believes that marriage is a sacrament
• Misuse of law: It may become an easy tool for harassing the husbands by misusing the law similar to the growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of the IPC.
• Awareness is more important: Merely criminalizing marital rape may not stop it as “moral and social awareness” plays a vital role in stopping such an act.
• Diversity in Cultures of the states: India has its unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, the mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital rape.
  • Also, criminal law is in the Concurrent List and implemented by the states and there is a vast diversity in the cultures of these states
• Law Commission has not recommended: Indian Law Commission and the Parliamentary Standing Committee on Home Affairs after thoroughly examining the matter did not recommend the criminalization of marital rape.

Conclusion

Laws are essential to delineate boundaries in our interactions, ensuring the preservation of constitutional principles like equality, dignity, and bodily autonomy. However, it’s crucial to acknowledge the stark social realities that often limit their effective implementation in practice.

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