More than a year after the Supreme Court refused to entertain a woman’s plea to declare marital rape a criminal offence, the focus is back on the contentious issue with the NDA government rejecting demands to criminalise it.
Women and child development minister Maneka Gandhi had said last week that the concept of marital rape cannot be “suitably applied in the Indian context” due to factors like poverty, illiteracy and religious beliefs.
“It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc,” Gandhi had said in a written reply to the Rajya Sabha.
Minister of state for home Haribhai Chaudhary also had a similar view. Citing a parliamentary committee report, he told the Lok Sabha earlier this week that if marital rape was made a crime, the entire family system would come under great stress.
As pressure from women’s rights activists and UN organisations mount, the debate on the contentious issue is raging in India.
HT examines the pros and cons of it.
What does the law say?
Section 375 of the Indian Penal Code defines rape as sexual intercourse without consent and against the will of a woman.
The Criminal Law (Amendment) Act 2013 that was enacted after the December 16, 2012 gang rape case enlarged the definition of rape. Now, any kind of penetration of a male organ or any object into any body part of a woman amounts to rape.
But an exception to the Section 375 says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without her consent.
Demand to criminalise marital rape
Women’s rights activists, women’s organisations and the National Commission for Women have been demanding that marital rape be made a criminal offence as it is against the dignity of women who are forced to suffer the worst form of sexual violence silently within the four walls of their homes.
DMK MP Kanimozhi had raised the issue in the Rajya Sabha last year. Citing a United Nations Population Fund report, she had said more than 75% of the married women in India were victims of marital rapes and there were no laws in India to deal with the problem.
Chaudhary had then said the concept of marital rape could not be applied as marriages were considered to be sacred in India.
Law commission, parliamentary panel against criminalisation
Most committees and commissions have recommended against criminalising marital rape. In its 172nd report submitted to the government in 2000, the law commission opined against it, saying “that may amount to excessive interference with the marital relationship.”
The law commission recommended that forced sexual intercourse by a husband be treated as an offence just like any other physical violence by a man against his wife.
Chaudhary had said in the Lok Sabha that the department-related parliamentary standing committee on home affairs that presented its 167th report on the Criminal Law (Amendment) Bill, 2012 in the Rajya Sabha on March 1, 2013 was against criminalising marital rape.
While giving its report, the committee considered both the 172nd report on the review of rape laws by the Law Commission and the report of the justice JS Verma Committee. The parliamentary panel has observed that if the issue of marital rape is brought under law, the entire family system will be under great stress.
The panel endorsed the view that marriage presumes consent and criminalising marital rape would weaken traditional family values in India. Making marital rape and offence could lead to practical difficulties, it had said.
Justice Verma Commission report
However, the Verma Committee that examined criminal law provisions from the point of women’s safety after the December 16, 2012, gangrape case favoured criminalising marital rape.
“The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape,” Verma Committee said.
Supreme Court on marital rape
In February 2015, the Supreme Court refused to entertain a woman’s plea to declare marital rape a criminal offence, saying it wasn’t possible to order a change in the law for one person.
A Delhi-based MNC executive had told the top court that her husband repeatedly resorted to sexual violence but she was helpless as marital rape was not a crime in India.
“You are espousing a personal cause and not a public cause... This is an individual case,” a bench of justice AR Dave and justice R Banumathi had said, refusing to take up her plea.
The woman had challenged the validity of an exception to Section 375 of the IPC that says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without consent. The provision, the woman said, violated her fundamental right to life and liberty.
Thereafter, the top court also dismissed a public interest petition, saying it was for the legislature to take a call on it.
Legal position in other countries
According to UN Women’s 2011 Progress of the World’s Women: In Pursuit of Justice report, marital rape is a criminal offence in about 52 countries, including the United States, the United Kingdom, Canada, France, Mauritius, Thailand and neighbouring Bhutan. The report said 127 countries did not explicitly criminalise rape within marriage.
Last year, the government had told Parliament the ministry of external affairs and ministry of women and child development had reported that UN Committee on Elimination of Discrimination against Women wanted India to criminalise marital rape.
Earlier this week, UNDP chief Helen Clark told the Hindu that “the issue is not one of culture, but of consent.” If India failed to criminalise marital rape, it would be flouting the Sustainable Development Goals (SDG), she added.
Should India criminalise marital rape?
Women’s right activists argue that forcible sexual intercourse with a woman even by her husband should be treated as a crime as it violates her right to live with dignity which is a part of her right to life and liberty guaranteed under Article 21 of the Constitution. Marital rape goes against her right to sexual privacy and right to bodily self-determination, they say.
“The position so far has been that nobody has taken a clear position on this issue. Only Verma Committee recommended for criminalising it. No woman should be subjected to sexual intercourse without her consent. This is the civilised position,” senior advocate Rajiv Dhavan said.
Former Supreme Court Bar Association secretary Aishwarya Bhati said nobody can justify marital rape. She, however, advocates a cautionary approach.
“It’s definitely wrong. But criminalising is something which has serious repercussions. It can wreak havoc with already strained and fragile matrimonial and family system. It would be wrong to look westward. It’s already a wrong - a civil wrong under the domestic violence law and sexual violence against a woman can be a ground for divorce,” Bhati said.
But the matter is again under the consideration of the law commission and perhaps the government would prefer to wait for its report before taking the final call.