Marital rape: Now, strike down exemption

The Karnataka High Court’s views on marital rape add judicial heft and give a push to the demand to strike down the exception to Section 375 of the IPC provided to sexual relations within marriage. There has been a growing demand for doing away with the exemption that lays down that sexual intercourse or sexual acts by a man with his wife, if she is above 18 years of age, is not rape. The single-judge bench of Justice Nagaprasanna did not strike down the marital rape exemption but forced the husband to face trial. The constitutionality of the exemption is under challenge before the Delhi and Gujarat High Courts and the Karnataka HC’s observations might indicate a welcome judicial thinking on the matter. The petitions before the other high courts have highlighted the issues of violation of a married woman’s right to say no and state control on female sexual autonomy implicit in the exemption, and the need to put an end to the historical prejudices in the law.

The IPC exemption is based on patriarchal attitudes and is a colonial legacy. It was framed on the assumption of man’s ownership of woman. The exemption does not exist in British law now. Marital rape is a crime in most countries of the world. Unfortunately, the Indian government has dilly-dallied on the matter and has told the Delhi HC that it would convey its views to the court later. It has given an indication of its view by stating that the issue involved ‘’social and family issues’’ and the traditional family structure. But what matters is the Constitution which treats women equal to men. Marriage is an association of equals. There should be no discrimination against women in marriage or any other association or forum, but the marital rape exemption is a blatant form of discrimination.

Justice Nagaprasanna has given clear and effective expression to this. He said: “A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on woman the ’wife’’’. He also said there is the need to efface the ‘regressive thought that husbands are the rulers of their wives, their body, mind and soul’, and emphasised how the institution of marriage does not and cannot ‘confer any special male privilege or licence for unleashing of a brutal beast’. The court has told lawmakers to hear the ‘’voices of silence’’ and repeal the discriminatory exemption. If they do not heed the call, the court should strike down the anachronistic clause. The exemption needs to go especially because the average Indian woman is many times more likely to face sexual violence from her husband than from others.