by Srishti Sinha, BMS’24

“She is a mother, a daughter, a sister  a human being”.

Rape in India is still viewed as a violation of a family’s honour than a woman’s personhood. In the Victorian Era, if a stranger raped someone’s daughter or wife, they were punished on grounds of ‘vandalising someone else’s property’. A glimpse of this Victorian concept of morality can be seen in the Exception 2 of Section 375 of the Indian Penal Code which attempts to define rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 15 years of age.” But Exception 2 of the section, the “marital exemption” states “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. The Supreme Court has read this down as 18 years of age. Most countries and former colonies which borrowed such morality have already shed the same. Indian Penal laws were given by the British but the United Kingdom has already criminalized martial rape in 1994. So why are we still following ancient rules that are not even ours?

The Delhi High Court with a two-judge Bench of Justices Rajiv Shakdar and C Hari Shankar, is hearing a clutch of petitions challenging the exception to Section 375 of the Indian Penal Code, the petitioners include the RIT Foundation, the All India Democratic Women’s Association (AIDWA) and three individual petitioners, one of whom is a victim of domestic and sexual violence. The petitioners have argued that it differentiates the consent given by a married and an unmarried woman, and is based on the assumption that a woman gives her consent to sexual intercourse forever as soon as she ties the knot, and this consent cannot be revoked. The marital exemption also violates the right to equality under Article 14 and infringes on the sexual autonomy and individuality of women. 

In support, amicus curiae Rebecca John, explains that there is no “right” but only an “expectation” of conjugal relations with the wife in a marriage and the same also cannot lead to the husband having forced relations with her. “This is not about expectation and one woman saying one day that she is not in the mood. This is about a man exercising his dominant right over his wife despite the wife saying that she will not do it with him”, she said. She also highlighted that Justice J.S. Verma in the ‘Report of Committee on Amendment to Criminal Law’ had taken cognizance of the issue of marital rape and recommended removal of the exception stating that marital or other relationship is not a valid defence against sexual violation.

Opposing the removal of the exemption, it is being argued that it amounts to excessive interference with the institution of marriage. The argument goes further stating that men would be crucified by their wives trying to monetise penal laws in their favor, that those laws can be misused to make false allegations. However, a potential for misuse of the law cannot be an argument against its enactment. The misuse of the law is not only a problem for the accused, but also for victims. We must, therefore, plug the loopholes which have a potential for exploitation. The exercise requires a re-examination of the procedural and evidentiary safeguards in rape trials. This requires a larger exercise than a simple reading down of the marital rape exemption. As one of the amicus curiae and senior advocate, Rajshekhar Rao told the court that apprehensions of misuse and protection of the institution of marriage cannot be a ground to sustain the marital rape exception in the Indian Penal Code (IPC). He said that there was always a possibility of misuse of criminal offences and had the object of the legislation been to protect the institution of marriage, wives would not have been given the power to prosecute husbands for any offence, including lesser sexual offences.

Some men have taken to twitter to trend #MarriageStrike, started by Save Indian Family Foundation (SIFF), a men’s rights advocacy group, to say that they will not marry at all if more power is given to women in marital relationships. The prime fear being misuse of the power to falsely implicate men. By starting the trend, SIFF is requesting the lawyers at the Delhi High Court to “stop treating men as 2nd class citizens and meet (their) basic demands, then they can call for any number of laws for women”.

Another argument in favour of its retention is the existence of ‘other remedies.’ It is argued that a spousal rape victim has the right to divorce. Civil remedies, such as divorce or the PWDV Act (Protection of Women from Domestic Violence Act), are far from substitutes for criminal offenses. Similarly, it is argued that the victim has recourse under IPC Sections 498A (cruelty by husband or relatives) and 377 (unnatural carnal intercourse). The existence of alternative remedies, on the other hand, barely validates the exemption from prosecution for rape. The notion that other laws provide a “sufficient remedy” for rape trivialises the real violation that rape entails. Rape laws exist to protect not only women’s physical safety, but also their sexual autonomy.

The Government has not given a firm stance on whether it will look into amending the marriage exemption. Earlier in a 2017 affidavit, they had defended marital rape immunity and their arguments spanned from protecting men from possible misuse of the law by wives, to protecting the institution of marriage. But now, the solicitor general Tushar Mehta, on behalf of the central government, had asked the court for reasonable time to submit a response in the matter after consulting all the stakeholders. Thus, the Court will also have to consider the scope of judicial interference in this case. 

One question that the court itself has raised is whether striking down the “marriage exception” would “create a new offence” that is, will the court need to define the law around what kind of sexual acts or behaviour would fall under “marital rape”. To this, the amicus curiae have essentially argued that striking down the exception would not result in the creation of a new law, since the law itself criminalises the act of forced sex. It now remains to be seen how the court will interpret this intricate legal issue.

Patriarchy and misogyny playing a central role in these discussions, one is bound to question whether criminalization, if achieved, will change anything. Madhu Bala, who works at Jagori, an NGO to raise awareness about violence against women, said that it will provide women some courage to speak out. Shaonli Chakraborty, Director of Swasti, an NGO that works for women’s health, said that in her experience, knowledge of law actually deters the perpetrator. Neha Singhal, a senior resident fellow at Vidhi Center for Legal Policy said that while it might not have an immediate effect on the ground, it will express society’s disapproval of the act, and that is a big win in itself. 

Out of 195 countries in the world, 140 have already criminalized martial rape. In India, its criminalization has remained long overdue. We hope that the Court puts an end to the long, lonely battle that marital rape victims have been fighting all their lives, and provide legal remedial relief. This win could become a catalyst for change in perception of coming generations with respect to the whole concept of marriage and rape.