Should Marital Rapists Be Punished?

By: Priyanka ‘Saurabh’

Recently a judgment was given by the Delhi High Court on marital rape. Indian rape laws treat marriage as an exception, and human rights organizations are fighting to criminalize marital rape. Does marriage give you a license to have sex with your partner whenever you want? No. Consent is important in the marriage too, and it’s only time we recognize it legally as well. The new ruling on criminalizing marital rape was divided. Justice Shankar upheld the criminalization while Justice Shakadher denied it, saying, “The expectation of a husband to have sex with his wife is a legitimate expectation, healthy sex being an integral part of the marital bond.” Do you have a word for these statements?

Sexual violence has been the subject of serious debate and controversy around the world, including in India, in recent years. The Delhi rape incident of December 2012 caused an uproar and subsequent change by bringing in stricter laws and harsher punishments for the perpetrators of rape. However, one aspect of the problem, marital rape, remained untouched. The recommendations of the Verma Committee to declare rape a crime were not accepted by the government at that time. A parliamentary committee had also opposed the proposal of the Verma Commission, saying that if marital rape was brought under the purview of the law, the entire family system would be under tremendous pressure. Recently, the government reiterated the position adding that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors. This has revived the debate as to whether marital rape should be declared a crime and made a punishable offense or the status quo should be continued.

Most rapes go unreported. According to the latest National Family Health Survey, most acts of sexual violence in India are committed by husbands. Of the total number of rapes reported to the NFHS, 97.7% were committed by the victim’s spouse. Experts say that sexual consent is the right of every woman, whether married or unmarried, and there should be criminal laws like rape for non-consensual sex, regardless of the offender’s relationship with the victim. The absence of a law to protect it is a violation of human rights and an injustice to women. Marital rape is also considered a violation of the fundamental right guaranteed under Article 14 of the Indian Constitution which guarantees equal protection of laws to all persons. Depriving married women of an effective punitive remedy against forced intercourse violates their right to privacy and bodily integrity, right to life, and personal liberty under Article 21. The United Nations has also recommended India criminalize a man for raping his wife.

However, proponents of the marital rape exception argue that it is necessary to preserve the integrity of marriage, which is an important social institution. They also argue that marital secrecy requires that the state refrains from interfering in what happens within the home. They further state that the home is a private domain and if sexual intercourse within a marriage can be made the subject of legal proceedings, the whole purpose of securing the right to privacy would be defeated.

In February 2015, the Delhi High Court refused to entertain a PIL challenging a provision of the penal law that does not treat rape as sexual intercourse of a man with his wife, who is a minor. , noting that a similar case has been quashed by the Apex Court. , Thus judicial reforms are also necessary to deal effectively with such cases. That being said, marital secrecy – which justifies laws such as the marital rape exception – is a fundamental refutation of society’s commitment to treating all individuals with equal concern and respect. Many countries have made it a crime in recent years for husbands to force their wives to have sex. Malaysia changed its laws to that effect in 2007; Turkey in 2005; and Bolivia in 2013. The United States began criminalizing marital rape in the 1970s and most European countries in the 1990s.

Indian society has only now started talking about marital rape, given that it was declared a crime in the USA and UK in 1993 and 1991 respectively. And even India’s neighbouring country Nepal declared it a crime in 2002. But, India is one of the 30 countries where marital rape continues to be legal. Marriage is a relationship between two persons built around love, respect, trust, and consent. Within that civilized framework, violent and exploitative acts like rape have no place. This uphill battle for equality becomes even more difficult when people in high positions make derogatory remarks. The law should provide justice, not bow down openly against women’s rights. (The author is a Research Scholar in Political Science, poet, freelance journalist, & columnist. She can be reached at writer@drsatywansaurabh.com)