Marital rape… This issue has been debated for many years. But to date, there is no law on marital rape in India. Not only that, even if a husband forcibly has sex with his wife after marriage, he cannot be punished because it is not a crime in law.
But now the Supreme Court has expressed concern about marital rape. Many petitions have been filed in the Supreme Court seeking to include marital rape in the crime category. The Supreme Court has also sought a response from the central government in this regard. However, the Centre is yet to respond to this. Now the Supreme Court has agreed to hear these petitions.
Despite the central government’s silence, a bench headed by Chief Justice DY Chandrachud will hear these petitions. The bench said that although the Centre has not given any opinion, it is a matter of law and the government will have to argue it.
The court made this comment when senior advocate Indira Jaisingh, counsel for one of the petitioners, appealed to the court to hear the matter expeditiously.
Many petitions have been submitted
In May 2022, a two-judge bench of the Delhi High Court delivered a separate verdict on marital rape. Justice Rajeev Shakdhar called the legal provisions that gave immunity to husbands for marital rape “unconstitutional”. Whereas, Justice C. Hari Shankar had allowed the petitioner to move the Supreme Court.
In the petition, the Karnataka High Court’s March 2022 ruling, which ordered a marital rape case against the husband, was challenged. The High Court then said: “A man, even if he is a husband, is a man and no exemption can be given to him on the grounds of exception. If this happens, it is a violation of Article 14 (right to equality).
In the petition filed in the Supreme Court, the constitutionality of the exception to Section 375 of the IPC was challenged on the ground that it discriminated against married women.
What is that exception?
Marital rape is not a crime in India. If a husband forcibly has physical intercourse with his wife without her consent, it is called marital rape. But it is not punished in India.
In fact, marital rape is not considered a crime due to an exception. Section 375 of the IPC defines rape. There is also an exception, which states that if a husband forcibly has physical intercourse with his wife, even without her consent, it does not fall under the ambit of rape. However, Section 376 states that it is considered rape if the wife is below 15 years of age.
Now the IPC has been replaced by the Indian Judicial Code (BNS). Section 63 of the BNS gives the definition of rape. However, this exception has also been added to it. The only difference is that in the IPC, forced sexual intercourse with a wife below the age of 15 is considered rape. Whereas in the BNS, relations with a wife below the age of 18 are classified under the category of rape.
Also read: These two laws related to women that SC also questioned, know why these laws are considered the most ‘abusive’
What must the Supreme Court decide?
The Supreme Court had to decide two things. First – should there be rules or laws regarding marital rape? Second, should the husband be exempted in case of marital rape?
When has the court commented on marital rape?
There has long been a demand to criminalize marital rape. On September 29, 2022, the Supreme Court made an important judgment on abortion. The Supreme Court then said that a woman has the right to abortion regardless of whether she is married or not. In this judgment, the Supreme Court also mentioned marital rape.
The Supreme Court said that marital rape should also be included in the Medical Termination of Pregnancy Act. The court said that pregnancy due to marital rape would also be considered as sexual assault on the woman.
Earlier, on October 11, 2017, the Supreme Court had said while hearing the case that having physical relations with a wife under the age of 18 was a criminal act and could be considered rape. The court said that the underage wife could file a complaint within one year.
In August 2021, the Kerala High Court made an important comment, saying, “There is no penalty provision for marital rape in India, but despite this, it can be grounds for divorce.” However, the High Court also refused to consider marital rape as a crime.
On March 23, 2022, the Karnataka High Court said, “Such sexual assaults by husbands on their wives have psychological and physical effects on women. Such actions by husbands have shaken the soul of their wives and now Parliament needs to listen to these “silences”. The High Court also said, “For centuries, it has been believed that wives are slaves of their husbands. The husband has rights over her mind, soul and everything. The husband can do whatever he wants. Now such cases are increasing in the country and this mindset needs to change.
What is the government’s attitude towards marital rape?
The central government is yet to clarify its stand with the Supreme Court. Last year, the Centre told the apex court that criminalising marital rape would have many social implications.
Additional Solicitor General Tushar Mehta told the court: “This issue cannot be viewed through the prism of legal principles alone. “Its social consequences should also be considered.
However, the central government is against including marital rape in the crime category. In 2017, the central government said in the Delhi High Court on marital rape that “marital rape cannot be declared a crime. If it happens, it will shake the sacred institution of marriage.” Some people also believe that it can be an easy weapon to harass the husband.
What do the statistics on marital rape show?
Although marital rape is not considered a crime, many Indian women still face it. According to the National Family Health Survey (NFHS-5), more than 29% of women in the country still face physical or sexual violence from their husbands. The difference between rural and urban areas is even greater. The proportion of such women in rural areas is 32%, while in urban areas it is 24%.
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