MARITAL RAPE EXCEPTION IN CRIMINAL LAW IS A COLONIAL RELIC

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Picture Courtesy:  INDIAN EXPRESS

Context

The debate over criminalising marital rape has intensified as the Supreme Court is set to hear a batch of petitions challenging the constitutional validity of the marital rape exception.

What is Marital Rape?

Marital rape is non-consensual sexual relations between spouses, defined by the lack of consent. It is a severe domestic violence, violating trust and bodily autonomy.

Current Legal Status in India

Legal Provision: Sexual intercourse by a man with his own wife is not considered rape under Section 63, Exception 2 of Bharatiya Nyaya Sanhita (BNS), provided the wife is over 18.

Judicial Intervention: In the Independent Thought vs Union of India (2017) case, the Supreme Court criminalized the rape of a minor wife by raising the age of consent within marriage from 15 to 18 years, though this protection was not granted to adult married women.

Civil vs Criminal Remedy: Marital rape, a form of sexual abuse under the Protection of Women from Domestic Violence Act, 2005, is grounds for divorce but is only a civil remedy, not leading to criminal prosecution.

Conflict with Constitutional Values

The marital rape exception directly violates the fundamental rights guaranteed by the Constitution. 

Social and Psychological Impact

The legal immunity for marital rape normalizes sexual violence within families and has severe consequences:

• Mental Health: Victims suffer from long-term trauma, including depression, anxiety, Post-Traumatic Stress Disorder (PTSD), and suicidal thoughts.
• Physical Health: Consequences include physical injuries, gynecological problems, unwanted pregnancies, and increased risk of sexually transmitted infections (STIs).
• Cycle of Violence: The normalization of such abuse affects the well-being of children in the household and perpetuates inter-generational cycles of violence.
• Silence and Stigma: Victims often remain silent due to social stigma, economic dependence on their husbands, and the lack of legal recourse.

Scale of the Problem: NFHS-5 Data

The prevalence of spousal violence in India is alarmingly high, with sexual violence being underreported.

• According to the National Family Health Survey-5 (2019-21), 29.3% of married Indian women between the ages of 18-49 have faced domestic violence/spousal abuse.
• Of the married women who have ever experienced sexual violence, a 95.3% identified their current or former husband as the perpetrator.
• A vast majority of survivors do not seek help due to social stigma, economic dependency, and the normalization of sexual violence within marriage.

Government's Stance and Key Arguments

Government opposes the criminalization of marital rape, arguing it would destabilize the "institution of marriage" and is "excessively harsh" for husbands.

Argument 1: Threat to the Institution of Marriage. The government has argued that criminalization could "destabilize" marriages.

• Counter-Argument: A marriage sustained by non-consensual sex and violence is already broken. The law should not protect such an institution at the cost of an individual's fundamental rights.

Argument 2: Potential for Misuse. The fear of false cases being filed to harass husbands is a major concern.

• Counter-Argument: The potential for misuse exists for all laws. The Supreme Court has held that a law cannot be struck down on this basis alone. Procedural safeguards and thorough investigation can prevent misuse, as is done for other criminal offenses.

Expert Recommendation: The Justice J.S. Verma Committee (2013), formed after the Nirbhaya case, recommended the deletion of the marital rape exception, asserting that marriage is not an irrevocable consent to sexual acts.

International Practices 

Over 150 countries worldwide have criminalized marital rape, including the UK, USA, Canada, South Africa, and Australia.

International conventions, such as the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which India is a signatory, call nations to take all appropriate measures to eliminate violence against women, which includes marital rape.

The UN Declaration on the Elimination of Violence against Women also recognizes marital rape as a violation of human rights.

Way Forward 

Legislative Reform: Amend the BNS and remove the marital rape exception, aligning Indian law with constitutional principles and global standards.

Introduce Safeguards: To address concerns about misuse, clear safeguards, robust evidentiary standards, and thorough judicial scrutiny can be implemented.

Strengthen Support Systems: Enhance civil remedies and create accessible support systems like shelters, counseling services, and legal aid for victims.

Sensitization and Training: Conduct sensitization programs for police, judiciary, and medical professionals to handle such cases with empathy and professionalism.

Public Awareness: Launch nationwide campaigns to raise awareness about the importance of consent within marriage and challenge patriarchal mindsets.

Conclusion

Criminalizing marital rape is not about interfering in the private sphere of marriage but about upholding the state's duty to protect every citizen's fundamental rights.  

Source:  INDIAN EXPRESS