Representative image of sexual violence on women.
Credit: Special arrangement
Women’s rights activists have criticised the Centre’s opposition to criminalisation of marital rape.
Early this month, the Centre argued before the Supreme Court that making sexual acts within marriage punishable as ‘rape’ could disrupt conjugal relationships and destabilise the institution of marriage.
The union goverment filed a preliminary affidavit in petitions seeking criminalisation of marital rape in India. It argued that alternative legal remedies exist to protect married women against sexual violence.
Batting for husband’s legal immunity, it called for a comprehensive approach that considers social implications before making changes to the law.
“In the fast-growing and ever changing social and family structure, misuse of the amended provisions can also not be ruled out,” it added.
Human rights activist Brinda Adige argues that the notion of marital rights should not be centred on conjugal relations. In her view, “our patriarchal society has long sanctioned a husband’s entitlement to his wife’s body, a belief that the courts are seemingly continuing to uphold”.
As a result, “the woman has never been considered a separate entity,” she emphasises. Dubbing the Centre’s outlook as “sexist”, she said it places more importance on preserving marriages than protecting women’s rights.
Priya Varadarajan, a campaigner for gender justice, finds the Centre’s opposition “deeply regressive”, one that undermines decades of progress made for women’s equality.
She reasons: “Marriage is a perpetuated situation of patriarchy, where women are stripped of their identity and forced to navigate a system that disregards their autonomy.”
She says we need to broaden our understanding of consent “because rape within marriage is often dismissed as inappropriate behaviour.”
Ntasha Bhardwaj is the founder of the South Asian Institute of Crime and Justice Studies. She says the current stance sends out the wrong message.
“Technically, the Centre is permitting sexual violence to be acceptable”, she begins. Two, it is not addressing concerns raised by the petitioners, such as why marital rape can’t be classified as rape.
Ntasha believes that criminalising marital rape may not completely stop it but it would “at least instill fear” of the law.
A representative of a women’s health organisation in Karnataka explains why this is needed: “We work with thousands of women who face violence and sexual abuse within their marriages. The lack of legal recognition for marital rape makes it harder for them to seek help.”
Ntasha believes that academics, activists, and journalists need to keep the discourse on women’s rights alive. In 2020, she had started a signature campaign to criminalise marital rape.
When Karnataka High Court upheld marital rape charges against man
The petitioners are challenging the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code (now, Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023). It grants the Marital Rape Exception (MRE) to Indian husbands, stating that sexual intercourse or acts by a man with his wife, provided she is not below 18 years, do not constitute rape.
These petitions followed from decisions by Karnataka and Delhi High Courts, calling for a decision by the legislature and an authoritative pronouncement by the Supreme Court respectively.
In 2022, the Karnataka High Court upheld rape charges framed against a husband by a trial court for sexual assault on his wife. The woman had accused him of treating her as a sex slave.