Marital rape: Split verdict a setback for justice

SC should declare marital rape a crime forthwith

The legal battle to criminalise marital rape has suffered a setback with the Delhi High Court delivering a split verdict on a batch of petitions seeking the removal of an unjust exception in the rape laws. The exception under Section 375 of the IPC lays down that “sexual intercourse or sexual acts by a man with his own wife” is not rape, and thus protects husbands from prosecution for non-consensual sex with their wives. Justice Rajiv Shakdher held that the exception was unconstitutional as it was violative of the woman’s fundamental rights and that any expectation of sex in a marriage couldn’t trump a woman’s right to bodily autonomy. Justice Hari Shankar, on the other hand, ruled that the institution of marriage was different from all others and carried a “legitimate expectation of sex”. He held that bringing the possibility of the husband being convicted as the wife’s rapist would be “antithetical” to that institution. The two judges differed on every aspect of the case.

It is unfortunate that after the persistent expansion of fundamental rights, including women’s rights, as a result of long campaigns and struggles and judicial interventions, the country is still stuck on the issue of marital rape. There have been differing judgements from other High Courts also on the matter, and it will now have to go to the Supreme Court for the final say. The basic issue is a woman’s ownership of her body and the right to take decisions about it. The government presented a very retrograde view to the court, stating that criminalisation of marital rape would destroy the sanctity of marriage. It also argued that the issue should not be treated merely as a constitutional matter because it will have serious implications for society. This is a wrong view because marriage does not extinguish the fundamental rights of women. It is not making marital rape a crime but sexual violence within marriage that would threaten it. What will remain of the institution when the relationship is damaged by violence?

The demand for criminalisation of marital sex is especially relevant in the country where there is a high level of violence within the family. The latest National Family Health Survey (NFHS-5) says that nearly one in three married women experienced physical and sexual violence at the hands of their husbands. To deny legal remedy for such violence in the name of archaic notions of marriage is injustice. Fundamental rights should have precedence over the idea of sanctity of family which, in effect, is protection of an errant man. It should also be noted that India is in a minority of about 30 countries in the world where marital rape is not a crime. Hopefully, the top court will assert women’s rights.