Delhi high court split on marital rape. What is the law in other countries?
Marital rape is a form of sexual assault, which is defined by the World Health Organisation as "any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work".
The Delhi High Court on Wednesday delivered a split verdict on petitions seeking to criminalise marital rape in India - a longstanding demand of women's rights groups. Favouring criminalisation, Justice Rajiv Shakdher said IPC 375 was violative of Article 14 of the Constitution - which guarantees equality before the law - and therefore should be struck down. Justice Hari Shankar, however, disagreed and said the provision does not violate any law and could continue to exist.
Both parties have been granted an option to move this matter to the Supreme Court.
What is marital rape?
Sexual intercourse between marital partners - without the explicit consent of both parties - is considered marital rape. In general, though, the term is popularly used to refer to sexual intercourse or acts committed by the husband on the wife without her consent.
It is also a form of sexual assault, which is defined by the World Health Organisation as "any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work".
In many countries, this is a punishable offence.
However, as of 2021, as many as 32 countries have decriminalised marital rape.
Besides India, this list includes Bangladesh, China, Haiti, Laos, Mali, Myanmar, Senegal, Afghanistan, Tajikistan, Lebanon, Malaysia, Singapore, Egypt, Libya, Oman, Yemen and Kuwait.
Here is a look at some of the countries and their stands on the issue:
Pakistan
In Pakistan, the legal situation regarding marital rape is unclear.
In 1979, Pakistani law defined rape as 'forced sex outside of marriage'. However, in 2006, it was redefined as sex without the woman's consent after the then government introduced a bill to protect women from sexual violence. As it stands now, the definition potentially makes marital rape a crime. However, it does not specify this and so the penal code remains ambiguous. It has been argued that the bill did intend to include marital rape as an offence.
China
Under current laws, marital rape is neither a criminal nor civil offence. However, in November last year, a man was sentenced to eight months for having 'coercive sex' with his wife.
United States
Marital rape was criminalised in all 50 states in 1993 but legislations vary from state to state.
United Kingdom
Also known as spousal rape, it has been criminalised under the Sexual Offences Act of 2003 and those found guilty can be sentenced to life in prison.
South Africa
Marital rape has been illegal since 1993 under Article 5 of the Prevention of Family Violence Act.
Nigeria
Marital rape is explicitly excluded from criminal law. The Northern Nigeria Penal Code - applicable in the southern part of the country as well - states categorically that a man cannot be held to have committed the crime of raping his wife no matter the circumstances under which he had sex.
Russia
Marital rape is illegal and is covered under the general provisions of an act against sexual violence by including the spouse as a relative. Russia was one of the first countries to remove 'marital exemption' in laws on violence against women laws - this was back in 1922.
Germany
Spousal rape was only outlawed in 1997 - later than many other developed nations - after female ministers and women's rights activists lobbied for over 25 years.
France
Marital rape is explicitly outlawed and the government is seen as enforcing the law effectively.
Saudi Arabia
Rape is a criminal offence under Sharia law, but spousal or marital rape is not recognised as a crime.
United Arab Emirates
The penal code of the UAE does not address spousal rape as a crime. In a rare event in 2017, the Dubai court sentenced a policeman to six months for raping his to-be bride. During the hearing, the defendant had argued that he considered both of them married at the time of the offence.
Israel
In 1980, the Israeli Supreme Court affirmed that marital rape is a crime, citing law based on the Talmud, the central text of Rabbinic Judaism and the primary source of Jewish religious law.
Canada
Articles 271 & 278 of the Criminal Code criminalise rape of men or women, including spousal rape, as sexual assault.