"Criminalizing marital rape will disturb the institution of marriage" - that’s what the Indian government has consistently argued. Despite years of debate, India still lacks a law that explicitly criminalizes marital rape. Section 375 of the Indian Penal Code (IPC) defines rape as sexual intercourse with a woman without her consent. Sounds straightforward, right? But thanks to Exception 2 of this section - an outdated colonial-era provision - a man forcing his wife, as long as she's over 18, is not considered rape.
This outdated clause was crafted by the British back in the 19th century. Should we really be sticking to a law made by a colonial regime centuries ago? Well, the government seems to think so. Their position is that while a husband has no fundamental right to violate his wife’s consent, calling it "rape" is "harsh and disproportionate." They also fear that such a law could be misused, arguing for a more balanced approach.
The Central Government’s Stand
In its affidavit to the Supreme Court, the Narendra Modi government reiterated its opposition to criminalizing marital rape, claiming it could "destabilize" marriages. According to the government, classifying marital rape as a crime could have a “severe impact” on the conjugal relationship and disrupt the sanctity of marriage. They argue that this issue cannot be decided based on the arguments of a few lawyers but requires consultations with stakeholders and state governments.
This isn’t a new stance. In 2017, the government filed an affidavit in the Delhi High Court arguing that removing the marital rape exemption would lead to the “harassment” of husbands. Similarly, in 2022, they insisted on wider consultations, stating that the decision should not be rushed.
The Ground Reality
According to the National Family Health Survey (NFHS-5) conducted between 2019-2021, nearly one in three women aged 18-49 have faced spousal abuse, and around 6% have suffered sexual violence. Among these women, 83% reported that their current husbands were the perpetrators. This means thousands of women in India live with their potential rapists, yet the law still protects these men under the guise of "marital sanctity."
What Are the Existing Legal Options for Women?
Currently, without a specific law criminalizing marital rape, women have limited legal recourse. The Protection of Women from Domestic Violence Act (2005) offers some protection, as it includes sexual abuse as a form of domestic violence. Women can file complaints directly with the police, protection officers, or the court. However, the reliefs offered are civil remedies like protection orders, counseling, and monetary compensation, which are not always effective. Many women face prolonged legal battles, and even when they get protection orders, they are often violated with little consequence for the abuser.
Women can also pursue action under Section 498A of the IPC, which covers cruelty by husbands. However, critics argue that this is not a reasonable substitute for a marital rape law, as it often fails to provide timely justice.
High Courts’ Mixed Rulings
Indian courts have delivered conflicting judgments on the issue. In 2018, the Gujarat High Court ruled that a husband couldn’t be prosecuted for raping his wife but criticized the lack of equal legal protection for women. The Kerala High Court, however, recognized marital rape as grounds for divorce in 2021, asserting that a woman's body is not her husband’s property. Similarly, the Karnataka High Court ruled that husbands could be prosecuted for marital rape in 2022, but this ruling was stayed by the Supreme Court.
Political Hesitation and Cultural Sensitivity
The government’s reluctance isn't unique to one party. Both Congress and BJP-led governments have been hesitant to criminalize marital rape. In 2013, the J.S. Verma Committee recommended criminalizing it, but the Criminal Law (Amendment) Act passed later that year didn’t include this provision. The parliamentary panel that rejected this recommendation had members from both parties, with BJP’s Venkaiah Naidu as its chairman.
Maneka Gandhi, a former women and child development minister, argued that the concept of marital rape doesn’t apply to India due to cultural factors, poverty, and societal customs. This argument is echoed by her successor, Smriti Irani, who also warned against labeling all men as rapists.
Despite attempts by MPs like Kanimozhi and Shashi Tharoor to introduce bills to remove the marital rape exemption, none have gained enough support. While the CPI and CPI(M) have consistently called for its criminalization, most political parties remain vague or silent, recognizing the cultural sensitivities around the issue.
The Path Ahead
Marital rape is undeniably common in India, as the government itself admits in its affidavits. However, the focus remains on preventing the “misuse” of the law and preserving the so-called “sanctity” of marriage. With courts giving mixed judgments and the government resistant to change, the fight for justice continues.
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