Marital rape exception must go

The comment made by a judge of the Gujarat High Court that a rape is a rape even if it is perpetrated by the husband on his wife is a step forward in recognising marital rape as a crime. Justice Divyesh Joshi made his observation while refusing bail for a woman whose daughter-in-law had complained that her husband and father-in-law had raped her with the connivance of the woman. The fact that it is a case in which members of the husband’s family is also involved in the sexual offence adds to the gravity of the comments. The judge said the nature of sexual violence is diverse, and there is a tendency to view some of them as minor. But they will have a lasting and pernicious effect on survivors and society. 

The judge’s remarks will hopefully strengthen the case for declaring marital rape as a crime in the country. In Indian law, there is an exception which gives immunity to a husband from the charge of rape, except when the wife is below 18 years of age. The Bharatiya Nyaya Sanhita, 2023, which has just been passed by parliament, and which the government claims has ‘decolonised’ Indian law, retains this exception. It is difficult to see how this provision reconciles with the right to equality of women. The new laws are claimed to give priority to crimes against women but they still follow the patriarchal notion that men have absolute power, including sexual power, over women. This is also repugnant to the idea of consent inherent in a marriage. A woman has her right over her body and she does not give it away to her husband on marrying him. 

There are petitions pending in the Supreme Court that contend that the exception for marital rape is discrimination against women. The Karnataka High Court had in March 2022 approved the trial of a man for marital rape. But the central government has told the court that it is against making marital rape an offence because that would weaken the institution of marriage. This is a wrong notion because marriage should be based on consent and mutual respect of parties to be considered as strong. There are social, economic and cultural reasons and entrenched ideas and practice of gender inequality which are behind the refusal to give the woman the right to her body. There is a political dimension also to it. Equality means sexual equality, too, and the country should move towards it.