Editorial: Criminalise marital rape

The institution of marriage, built on the premise of equality, should not be allowed to be used as a cover for sexual violations. It should not give any special male privilege or a licence for unleashing a brutal beast. The Karnataka High Court’s path-breaking order, refusing to quash rape charges filed by a wife against […]

The institution of marriage, built on the premise of equality, should not be allowed to be used as a cover for sexual violations. It should not give any special male privilege or a licence for unleashing a brutal beast. The Karnataka High Court’s path-breaking order, refusing to quash rape charges filed by a wife against her husband, brings the spotlight on marital rape, an issue that can no longer be brushed under the carpet in the name of protecting traditional values. It is time the patriarchal notion that husbands are the rulers of their wives, their body, mind and soul should be done away with and the voices of those who are silently suffering must be heard. Looking at the way the current laws are being implemented, one wonders whether marriage automatically grants amnesty for all crimes of sexual violence. It is disturbing that India’s justice system has a poor track record when it comes to dealing with violence against married women by their husbands. Most marital rape victims are either unable or afraid to resist sexual aggression by their husbands. Victims of marital rape experience significant levels of posttraumatic stress disorder and depression. Way back in 2012, the Justice Verma Commission had suggested that marital rape be made an offence. However, the then UPA government took the position that criminalising marital rape could weaken traditional family values in India. The constitutionality of the marital rape exception is currently under challenge before the Delhi and Gujarat high courts. The NDA government argued before the courts that it was striving for consensus on the issue by holding consultations with all the stakeholders.

Overall, every government has been circumspect on the issue of criminalisation of marital rape. Section 375 of the IPC deals with rape and criminalises the act, but it makes an ‘exception’, saying the sexual intercourse by a man with his own wife is not rape. This exception was founded on the Victorian medieval law that husbands wielded their power over their wives. One of the main arguments against criminalising marital rape is that it would lead to the breakdown of the institution of marriage with wives falsely accusing husbands. It is also argued that the burden of proof would almost be impossible to meet in the case of marital rape. While the Domestic Violence Act can cover the offence of marital rape because ‘sexual abuse’ is defined as one of the acts or conducts that constitutes ‘domestic violence’, there are certain inherent problems with this Act, making it inadequate to deal with cases of marital rapes. First, the Act doesn’t explicitly define ‘rape’ as is defined in Section 375. Second, it has been deemed as a civil law by the courts and thus the accused can get away without any jail term.

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