Suggestions sought on criminalising marital rape

• Recently, petitions seeking criminalisation of marital rape, has been filled in the Delhi High Court.
• The Union government on the issue has replied that it is considering a “constructive approach” towards criminalising marital rape.
• The petition seeks to amend the criminal law, which includes Section 375 (rape) of the Indian Penal Code (IPC).

Background:

• The demand for marital rape to be criminalised is an outcome of government’s refusal to pay heed to the landmark report by the Justice J. S. Verma Committee, constituted after Nirbhaya gang rape in 2012.
• The government has emphasized on multiple occasions that moving such a bill will threaten the institution of marriage while experts say recent judgments, including the one on right to privacy, have rendered this argument untenable.

Section 375 of the Indian Penal Code

• It exempts forceful sexual intercourse by a man with his own wife from the offence of rape, provided the wife is above 15 years of age, also known as the “marital rape exception”.

Contentions against Section 375 of the Indian Penal Code:

• Violates the women’s fundamental right to equality, freedom of speech and expression, and most of all the right to life and personal liberty.
• It also violates the Right to choose for women.

Present status of other legal provisions regarding marital rape:

• Marital rape is not a ground for a divorce in Hindu Marriage Act, 1955, Muslim Personal Law [Shariat] Application Act, 1937 and Special Marriage Act, 1954, it cannot be used as a ground for divorce and cruelty against husband.
• No other statute or law recognises marital rape.
• Victims only have recourse to civil remedies provided under the Protection of Women from Domestic Violence Act, 2005.

Recommendations of JS Verma Committee:

• It proposed that “exception for marital rape be removed” and the law must “specify that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation”.

Need for criminalising marital rape:

• Marriage is an equal-relationship contract and not a one-time consent to everything.
• Exception to marital rape laws gives men unequal privilege.
• Marital rape victims suffer from long-lasting psychological scars & never healing- physical injuries.
• In a patriarchial society in India, women are expected to comply when their husbands demand sex.
• Exception under Section 375, violates Articles 14, 15, 19 and 21 of a woman.

Criticism of criminalizing marital rape:

• It “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”.
• “Rising misuse of Section 498A of IPC”, known as the dowry law, “for harassing the husbands”.
• Law Commission on Review of Rape Laws has examined the issue but not recommended the criminalisation of marital rape.
• What may appear to be marital rape to an individual wife, it may not appear so to others.

Way Forward

• The verdict on marital rape could be decided by an expert committee consisting of medical personnel, family counsellors, judges and police on the basis of varied aspects like the couple’s sexual history, physical and psychological harm to the victim.
• Legal reforms along with awareness campaigns can aid in sensitising the public (civilians, police, judges, medical personnel) on the importance of consent, timely medical care and rehabilitation, skill development and employment for facilitating economic independence of victims.