By P.K.Balachandran/Sunday Observer
Colombo, October 13: The controversial issue of rape within marriage has come up for debate again in India with the Union Government telling the Supreme Court that criminalizing marital rape would be “excessively harsh” and destructive of the institution of marriage.
The government had made the submission to a three-judge bench headed by Chief Justice of India D.Y.Chandrachud. The bench was hearing petitions seeking an amendment of a British-era law that says a man cannot be prosecuted for rape within marriage.
The case stems from a complaint by a woman against her husband, Hrishikesh Sahoo, alleging rape, besides cruelty and threats.
The Indian Penal Code (now renamed Bharatiya Nyaya Sanhita, 2023) grants what is called the “Marital Rape Exception” (MRE) to husbands. The MRE states that sex with the wife against her will does not constitute rape if she is 18 or above in age.
The government argued that a man should face “penal consequences” for having sex with his wife forcibly, but his act could not be deemed to be criminal one. “Criminalizing the act may seriously impact the conjugal relationship and may lead to serious disturbances in the institution of marriage,” the government said.
A penal consequence is a penalty for failure to comply with a law, rule, or order, and is not a crime.
The government’s affidavit said that a husband certainly does not have a fundamental right to violate his wife, but describing such a violation as ‘rape’ is “excessively harsh.”
The government further said that there are already sufficient legal protections for married women against sexual and domestic violence. It recalled that he issue of marital rape was addressed in a 2005 law protecting women from domestic violence. That law recognized sexual abuse as a form of domestic violence but it did not explicitly give penalties for it.
Rape within a marriage is a crime in more than 100 countries and all 50 American States. But India is among nations where it is not illegal for a man to rape his wife. In Sri Lanka, sex without consent is rape only if the woman had legally separated from him.
Writing in Medium in 2023, Vandita Morarka quotes the UN Population Fund to say that two-thirds of married women in India had been forced by their husbands to provide sex. Women are 40 times more likely to be assaulted by their husbands than stranger, she adds. The 2015-16 National Health Survey said that 11.5% of women had experienced sexual violence from their husbands. Aisha Akram of Oxford Brooks University says that 9.9 out of 10 marital rape cases are not reported. Therefore the issue graver than it seems at first glance.
While women’s rights groups have taken up the cause of criminalizing marital rape, the government and religious organizations have opposed petitions seeking to amend the rape laws. They are argue that sexual consent is “implied in marriage” and cannot be retracted.
But rights activists say that this argument is outdated in the context of changes in the concept of women’s rights. Women’s rights have expanded exponentially in recent years.
While it is true that marriage as an institution implies mutual consent for sex, women rights groups ask whether there could be a law giving the married woman the right to reject sexual intercourse?
The Karnataka High Court had amended the application of the MRE, to offer relief to women in abusive marriages where the abuse is predominantly sexual.
Following the Nirbhaya incident in Delhi in 2012 (where a young girl was gang raped in a moving bus and thrown on the road to die) the Justice J.S. Verma Committee was set up. It made a number of recommendations one of which was the deletion of the MRE.
Justice M.Nagaprasanna of the Karnataka High Court ruled that the MRE was “regressive” as it viewed wives as being subordinate to their husbands. He ruled that no legal exception could be so absolute as to license crimes against society. But the court stopped short of striking the MRE down entirely. It only said that MRE would not be applicable in cases of brutal sexual offences against wives.
In 2022, there was a split verdict at the Delhi High Court. Justice Rajiv Shakdher deemed the MRE unconstitutional and a violation of a woman’s bodily autonomy. But Justice C. Hari Shankar held that within marriage, sexual relations—consensual or not—are a legitimate expectation, thus judging the MRE as legal.
In its submission to the Supreme Court, the Indian government said: “The issue is more social than legal. Criminalisation of marital rape falls within the ambit of legislative policy.” That is to say, the court has no jurisdiction over it as it is a matter of social policy which falls within the legislature’s domain as per the theory of separation of powers.
The government cited a 2022 report of the National Commission for Women advocating retention of the Marital Rape Exception (MRE) on the following grounds: 1) married women cannot be treated on par with unmarried women, 2) alternative remedies exist, and 3) punitive measures may lead to destitution of the wife and dependent children.
In her paper Marital Rape: A Comparative Legal Anaylsis, Nending Sonia says that since India is a cultural and religious-centric country, women are treated as property to be controlled by men. And marriage is deemed sacred. Therefore, society does not accept that rape can happen in a marriage.
However, it cannot be denied that forced sex could lead to physical injuries. The injury could be psychological which is more damaging. The agony that a woman suffers when her husband rapes her repeatedly cannot be put into words, says Nending Sonia. The woman loses her confidence and self-respect. She could develop suicidal tendencies, depression, eating disorders and sexual dysfunctions.
In her paper on Marital Rape Exception in Sri Lanka, G.I.D. Isankhya Udani says that marital rape is criminalized only in the event of judicial separation. As per the Prevention of Domestic Violence Act of Sri Lanka, No. 34 of 2005, marital rape has not been recognized as crime.
Sociology of Marital Rape
Putting marital rape in the larger sociological context, researcher Shikha Chhibbar makes the following very significant points:
“Sexual violence against women in the form of marital rape is merely a symptom of a wider social issue. To fragment the issue is to preserve and protect spaces of abuse and violation.”
“The absence of criminal law protection against marital rape has reinforced a variety of social, economic and political myths regarding the role of women in Indian society. This lacuna has contributed to the process of normalizing this form of sexual violence by failing to hold perpetrators accountable, and in so doing has contributed to marital rape remaining invisible. This has led to a situation in which many women are unable to name forced sex within marriage as rape. Thus, the importance of deconstructing the public and private spheres, and of naming and documenting violence against women as social issue, cannot be overemphasized.”
“The inevitable resistance to legal reform regarding marital rape can be attributed to the fact that they pose a significant threat to the status quo which sees men at dominating positions of power and control within the family and over communities. The continuing exemption of marital rape from the purview of Indian criminal law sustains the assumption of the wife as exclusive property of the husband.”
“This is clearly a serious form of violence against women and worthy of public and state attention. Women who are raped by their husbands are more likely to experience multiple assaults and often suffer long-term physical and emotional consequences. In this context, marital rape may be even more traumatic than rape by a stranger because a wife lives with her assailant and she may live in constant terror of another assault whether she is awake or asleep.”
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