Sexual intercouse without consent, whether forced or manipulated, whether outside or inside the institution of marriage, or in any forms is, ‘rape’. Still why are our laws so reluctant in creating provisions to define and prescribe punishments for ‘marital rape’?
In India, there are no legal provisions that define “marital rape”.
The Domestic Violence Act, 2005 talks about marital rape by any form of sexual abuse in a live-in or marriage relationship. However, it only provides for civil remedies and leaves the victims without any ways to initiate criminal proceedings against the wrongdoers.
Section 375 of the IPC defines the acts that constitute rape by a man. But there are two exceptions to this provision, it decriminalises marital rape, and also mentions that medical procedures or interventions shall not constitute rape.
In addition to that, the Delhi High Court on Wednesday delivered a split verdict on decriminalising marital rape in the country. Exception 2 of Section 375 states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. In October 2017, the Supreme Court of India increased the age to 18 years.
This exemption or this state of absence of a concrete law, gives the husband an upper hand and a marital right to enter into consensual or non consensual sex with this wife. Leaving the wife with no rights in this regard, leads to the undermining of a women’s consent based on marital status and also to her subjugation and oppression inside the institution of marriage.
It is quite clear and evident in our social context that there is widespread sexual as well as other forms of intimate partner violence against women within marriage and there is an absolute necessity to criminalise such violence.
The bodily integrity and sexual consent of a women is very much important outside as well as inside the institution of marriage. Therefore it is not justifiable to decriminalise marital rape on the basis of the marital relationship of the victim with the accused or giving a lesser sentence than what it would otherwise attract in law.
The limitations related to the legal access, procedure, evidence and delays will remain even if marital rape is fully criminalized. Even though there are remedies for cruelty within marriage under Section 498A, in cases where women need immediate legal intervention, law should also be focusing on enabling them to raise these concerns, to enable women to break the silence around sexual violence. Addressing these barriers to prosecuting sexual violence within marriage is a necessary.
According to Amnesty International data, 77 out of 185 (42%) countries criminalise marital rape through legislation. In other countries, it is either not mentioned or is explicitly excluded from rape laws, both of which can lead to sexual violence. The United Nations has urged countries to end marital rape by closing legal loopholes, saying that “the home is one of the most dangerous places for women”.
The need to criminalise marital rape upholds the idea to remove the marginalisation of marital rape by advocating the sanctity of the institution of marriage and to bring the sentence on par with that of non-marital rape. And also to protect the integrity and consent of women inside the marriage as well.