Domestic violence affects about 70% of Indian women, according to the National Crime Records Bureau's (NCRB) 'Crime in India' 2019 report. Marital rape is at the top of the many manifestations of domestic violence.
‘Rape’ as per Latin rapere means to steal or to seize. This means that it is impossible to steal something that you already own, in the same way, a husband cannot be punished for raping his wife, as he assumes ownership over her after marriage, husbands are under the impression that they have the soul control or authority over their wives, indeed a stereotype!
The juxtaposition of Marital rape laws in India
The Gujarat High Court ruled in 2018 that a husband's non-consensual intercourse was not rape. The Delhi High Court ruled in the same year that both men and women had the right to say "no," and that marriage did not imply consent. (1)
In a judgment, the Kerala division court said that marital rape is a ground to claim divorce in 2021. In the same year, Justice N K Chandravanshi of the Chhattisgarh High Court discharged a man from facing trial for allegedly raping his wife, given that Indian law does not recognize marital rape if the wife is over the age of 15. (1)
A ray of hope for the Indian wives
The Gujarat High Court recently decided to re-examine the constitutional validity of categorizing marital rape as an "exception" of section 375 of the Indian Penal Code, which may provide some relief to the "married women-rape" victims (IPC).
Section 375 of the IPC states that sexual intercourse with a woman without her consent, against her will, misinterpretation, coercion, or fraud amounts to rape.
The exception-2 to Section 375, sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape. (2) Indian law says that because she(the wife) has given her matrimonial consent, no man is guilty of rape on his wife when she is over 15 years old. This exception to section 375 infringes the fundamental right to sexual autonomy of the wife, questions her dignity and right to bodily privacy. The husband treats his wife as per his whims as if she were merely a tangible property over which he has private fiefdom.
A petition filed by Jaideep Verma challenges the constitutionality of the exception given to men under section 375, which creates artificial distinctions in the rights conferred on women to file a criminal complaint and also deprives them of fundamental constitutional rights.
The PIL states, "This violates right to live with dignity, right to refuse, right to reproductive choices, right to privacy etc. It also creates artificial distinction in that if the women can file complaint against husband in case of physical assault why it can't be considered an offence like in case of rape, which is more serious."
"It is high time that a writ court undertakes the exercise of considering whether the exception-2 to Section 375 of the IPC could be termed as manifestly arbitrary and makes a woman's fundamental right to sexual autonomy subject to the whims of her husband," said the division bench of Justices J.B. Pardiwala and Niral R. Mehta. (3)
If a man is liable to be punished under sodomy then why not he be punished under marital rape, illogical.
The matter is scheduled to be heard on January 19, 2022.
Non-successful attempts to criminalize marital rape
The eminent UN Committee on Elimination of Discrimination Against Women (CEDAW) had recommended the Indian government to criminalize marital rape in 2013 but to no avail. The same was recommended by the JS Verma committee, which was formed in the aftermath of the Nirbhaya protests of 2016. Indian lawmakers or the judiciary believes that criminalizing marital rape would amount to too much interference in the matrimonial setup, the ground on which the 172nd report of the law commission opposed the criminalization of marital rape. (4)
CONCLUSION
Marital rape is an abysmal crime because even after marriage a wife has the freedom to say NO, and the husband cannot coerce her into sexual intercourse without her ‘consent’. The sacred trust of marriage is breached, and a wife's dignity is jeopardized.
There are laws against marital rape and it is explicitly criminalized in 150 countries as of 2019 including Nepal, Bhutan, Brazil, and Australia. (5) Despite this, India stands out among 32 countries where marital rape is not criminalized. It’s high time that Indian wives are freed by this heinous marital rape, for a wife is not a chattel.
References
2.https://indiankanoon.org/doc/195673915/
4.https://www.drishtiias.com/daily-updates/daily-news-editorials/marital-rape-in-india
5.https://en.wikipedia.org/wiki/Marital_rape_laws_by_country