While the issue of marital rape remains a hotly contested topic in India, recent developments show that change may be on the horizon. Recently, a series of petitions seeking the criminalisation of marital rape were filed in the Delhi High Court. The Union government has responded positively, revealing its consideration of a “constructive approach” towards criminalising the act. As part of this process, suggestions from various stakeholders are being solicited.
Background of Marital Immunity
The concept of “marital immunity” for rape prosecution originated from patriarchal discourse. According to this belief, a husband cannot be guilty of raping his lawful wife because by entering into marriage she supposedly consents to sexual intercourse at any time, and cannot retract this consent. The 1970s saw a global shift in attitude led by Australia, which was the first common law country to pass reforms criminalising marital rape in 1976. Following this, many Scandinavian and European countries followed suit.
Current Legal Provision
At present, India’s law regarding marital rape falls under Section 375 of the Indian Penal Code (IPC). Known as the “marital rape exception”, this law exempts forceful sexual intercourse by a man with his own wife from the definition of rape, provided the wife is above 15 years of age. Critics argue that this exception violates fundamental rights of women including equality, freedom of speech and expression, and the right to life and personal liberty, denying them control over their bodies.
Challenges In Prosecution
The low rates of prosecution for marital rape in India stem from societal conditioning and lack of legal awareness leading to under-reporting of such crimes. Additionally, there are concerns about inaccurate data collection methods by the National Crime Records Bureau (NCRB) and preferential out-of-court settlements, due to lengthy justice processes and lack of admissible proof.
Justice J. S. Verma Committee Recommendations
In the wake of the Nirbhaya gang rape in 2012, the Justice J. S. Verma Committee was constituted to suggest changes to India’s rape laws. Although some recommendations made their way into the Criminal Law (Amendment) Act, 2013, others, including the one on marital rape, were ignored.
Government’s Stand
Until now, the government has repeatedly expressed concern that criminalising marital rape may undermine the institution of marriage and infringe upon the right to privacy. There are also fears of misuse of legal provisions, as seen with Section 498A of the IPC and the Protection of Women from Domestic Violence Act, 2005, which protect women from harassment by their husbands and in-laws.
The Way Forward
The criminalisation of marital rape could mark a symbolic turning point. An expert committee, comprising medical personnel, family counsellors, judges, and police, could decide on sentencing, taking into account various factors like the couple’s sexual history and the physical and psychological harm inflicted on the victim. Alongside legislative reform, public awareness campaigns can help bring about a cultural shift, educating people about the importance of consent, timely medical care and rehabilitation, skills development, and employment to empower victims economically.
Last Modified: February 15, 2024