Criminalization of Marital Rape in India
-By Aasifa Mariyam
Introduction
Marriage, a timeless institution, is the beautiful journey of two lives woven together, each thread
representing shared dreams, laughter, and the promise of tomorrow. But the mentality of some
narrow minded people considers marriage as a licence for lifetime sex subscription. For some
men, marriage is just a source of satisfying their sexual desires, which leads to marital rape.
Despite progress in recognizing and addressing gender-based violence, the criminalization of
marital rape in India remains a complex and debated subject.
Marital Rape in Indian Law-
Indian law criminalizes rape, but marital rape is not a crime under exceptions of sec 375 of IPC.
According to the former judge of The Supreme Court Arijit Prasayat- Marital Rape is not a
husband's privilege, but rather a violent act and an injustice that must be criminalized.
The NFHS survey (2015-16) had stated that nearly 33% of women (18-49years) had suffered
some form of sexual or physical abuse from their spouses.
History of marital rape and global comparison-
In 1736, Mathew Hale gave his contractual consent theory. According to this theory ii, No
man can be guilty in the case of matrimonial rape. During marriage wife gave a mutual
matrimonial consent to her husband. And the consent is permanent.
And Britishers used this theory in framing our IPC too. But the interesting part is that they also
changed their law, and considered marital rape as a punishable offence. More than 150 countries
criminalized marital rape and made it a punishable offence.
Marital rape has been criminalized in more than 150 countries. India is among those 34
countries that have decriminalised marital rape.
After Nirbhaya Rape case, government set up J S Verma Committee in 2013. They were
responsible to reform criminal law in our IPC. Government accepted many suggestions from this
committee. But when they recommended government to remove the exception of marital rape
from the IPC , they didn't change anything in the law of marital rape.
During these periods congress were in power and they didn't change anything. But nothing
changes in the ruling of BJP also. In 2022 BJP parliamentarian Sushil Modi gave a statement that
' Criminalising Marital Rape will institution of marriage'. All major parties in India have
orthodox views regarding marital rape.
Can Marital Rape be criminalized in India?
The discrimination women suffer in the name of marital status violates various provisions of the
fundamental rights of Indian constitution.
Activists argue that it is a violation of a woman's bodily autonomy and a form of domestic
violence that needs legal redress. However, conservative voices often resist change, citing
cultural norms and the sanctity of marriage.
All the judicial proceedings started in 2015, when A Ngo, named RIT foundation filed a
petition against marital rape in Delhi High Court. Then the hearing of this case started And the
court gave a notice to central government. But central government in their affidavit said that
Criminalising Marital Rape will have a harmful impact on Indian society.
Then in 2017 , AIDWA (All India Democratic Women's Association) and khushboo saifi
filed a petition against exception of marital rape.
In 2022, A bench of two judges of the Delhi High court gave a split verdict on marital rape .One
judge was in favour of Criminalising Marital Rape while the other was against it. The matter was
pushed to Supreme court.
Recently, the Supreme court formed a three judge bench to hear a bench of petitions pertaining
to criminalization of marital rape. The Supreme court is yet to give a judgement on this matter.
The Effect of Marital rape on women-
As per NFHS 2019, 53% of the unemployed women witness marital rape while 26% of
employed women also witness it.
Marital rape causes physical, psychological and mental health issues among women. It has
been seen in the victims of marital rape that they suffers sadness, post traumatic-stress, fear, low
self confidence, intense vaginal rupture, vaginal bleeding, rape trauma etc.
Forceful sex sometimes causes vaginal ruptures which can further lead to the issue of infertility
for women.
Now the Question arises that why the Central Government still not addresses
this discrimination against women?
Government is scared that by Criminalising Marital rape the misuse of this law will occur.
Determining consent during sex between husband and wife is next to impossible. Misuse of law
is the biggest obstacle in criminalization of marital rape.
Conclusion
The criminalization of marital rape in India remains a challenging and sensitive topic.
Marital rape is a heinous crime, but there are some devils in the society who think that it is their
right. Sex without consent is clearly a rape no matter if it is done without a marriage or within a
marriage. To give a judgement in this case is quite difficult for the court as the chances of
misusing this law is higher. Balancing the need to protect individuals from sexual violence
within marriage with concerns about misuse of laws requires a nuanced approach.
