From bedroom to courtroom

Aditi Tandon in New Delhi

Human ties are such that these go beyond the obvious: if marriage is thought to be a natural culmination of a common desire to live together, its consummation is also thought to be as spontaneous. The physicality of it has come to be known as a gross sum of deeply felt emotions. Socio-economic structures, awareness, or the lack of it, shape up sensitivities. It is in that context that the very ties run the risk of escaping the bedroom walls, allowing the law to get in. The charges can be as grave as marital rape; the victim invariably is woman. 

Surveys done with a great amount of effort throw up startling facts: Husbands commit most of acts of sexual violence in India, and that just one per cent of marital rapes and six per cent of rapes by men other than husbands are reported to the police.

Social scientist Aashish Gupta with the Research Institute for Compassionate Economics compared National Crime Records Bureau (NCRB) statistics on officially reported cases of violence against women with data from the National Family Health Survey (NFHS). Women respondents were asked whether they had faced any sexual or physical violence.

The figures were astounding: while 157 per 1,00,000 women reported to NFHS surveyors that they had experienced rape by men other than their husbands in the past 12 months, 6,590 said their husbands had physically forced them to have sexual intercourse against their will. 

As things stand, marital rape is not recognized as an offence in India. A 157-year-old Indian Penal Code continues to apply despite being conceived in the Victorian times when men and women were considered unequal and women were barred from even owning property.

It was in this patriarchal landscape that the controversial Exception 2 to anti-rape section 375 IPC was born. This exception creates a fiction of “legal marital rape” and prevents women facing sexual assault in marriages from seeking legal protections. It, however, punishes non-marital rape with a minimum of seven years and a maximum of life imprisonment.

The significance

The debate on status quo on marital rape first gathered storm after the Congress- led UPA in 2013 rejected the JS Verma committee suggestion to remove the marital rape exception. Individual victims are now determined not to continue being treated like second class citizens.

Marital rape victim Khushboo Saifi, and two women organizations -- RIT Foundation and All India Democratic Women's Association (AIDWA) -- have challenged the marital rape exception in Delhi High Court. 

The petitioners say: All adults have the right to sexual autonomy and bodily integrity …without the right not to be raped, married women are legally reduced to reproductive subjects. The right to sexual autonomy and bodily integrity includes the right not to be raped under Article 21 of the Constitution. 

“Marital rape is the last vestige of paterfamilias ideas,” says Karuna Nundy, the lawyer for RIT foundation and AIDWA says.

Elsewhere in the world, the UK's House of Lords, the architect-nation of the Indian Penal Code, struck down the marital rape exception from their British law in 1991. Nepal, Canada, Australia, the European Court of Human Rights have also outlawed marital rape. 

What govt, experts think

In the affidavit defending the exception, government's standing counsel Monika Arora says what constitutes marital rape needs to be defined precisely before a view on its criminalization is taken. 

She says it has to be ensured that marital rape does not become a phenomenon to destabilize the institution of marriage and a tool to harass husbands. Even the Law Commission did not recommend criminalizing marital rape. “The fact that other countries, mostly western, have criminalized marital rape doesn't necessarily mean India should also follow blindly.”

The government has also told the high court that criminal law being in the concurrent list, states will have to be consulted.

Experts say the demand to criminalize marital rape is exaggerated because women suffering sexual abuse in marriages can take recourse to other existing legal provisions. These include Section 354 IPC (use of criminal force on a woman with the intention to outrage her modesty) Section 377 IPC (protects women from unnatural sexual acts); Section 498 A (anti-dowry law on cruelty in marriage) and the anti-domestic violence legislation.

Lawyer and women’s rights activist Madhu Mehra thinks criminalization of marital rape is just a dot on the larger canvas of gender inequality in marriages. She and others say the government should amend Section 498 A IPC to expressly mention marital rape and other sexual assaults in marriages as cruelty.” 

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At stake is marriage as an institution

This is one of the most complicated places to intervene… since you are entering the bedrooms of people. We need to see how to do this gracefully. We are still negotiating. — Maneka Gandhi, Women and Child Development Minister

There is no rational basis for differentiating between marital and non-marital rape. The rationale traditionally given is based on archaic notions of consent and property rights. — Khushboo Saifi, marital rape victim and petitioner in Delhi HC

Defining marital rape would require a broad consensus. It has to be ensured criminalization of marital rapes does not destabilize the institution of marriage and becomes another tool to harass men. — Monika Arora, government's standing counsel

The plea to criminalize marital rape represents a blinkered view of social realities, law enforcement and the abuse of law. You cannot allow the police to invade the sanctity of the home. This is a highly sensitive subject and is best left to the legislature of the day. — Ashwani Kumar, former Law Minister