The debate over criminalising marital rape in India has come to fore once again, with the Centre filing an affidavit opposing a string of petition calling for criminalisation.
In its submission on marital rape as part of the ongoing hearing in Supreme Court, the Centre has stated that marital rape is a social issue, not a legal one. Criminalising marital rape when there are other "suitably designed punitive measures" available is not within the jurisdiction of the apex court, the government said in an affidavit opposing petitions asking for the criminalisation of marital rape.
The Centre added that “while exercising such judicial review on such subjects (marital rape), it is to be appreciated that the present question is not only a constitutional question, but essentially a social question on which Parliament, after being apprised and being aware of all sides of the opinion on the present issue, has taken a position.”
The debate over criminalising marital rape in India has once again come to the fore with the Supreme Court listening to a Hrishikesh Sahoo vs Union of India and anr, which challenges the marital rape exemption under Exception 2 of Section 375 of the Indian Penal Code (IPC) and now in the Bharatiya Nyaya Sanhita (BNS). Exception 2 says that non-consensual sexual intercourse by a man with his wife, if she is over 15 years of age, does not amount to rape.
India is one of 36 countries worldwide that still does not recognise marital rape as a crime. The existing legal framework shields husbands, enabling them to engage in non-consensual sex with their wives without facing criminal charges. As the Centre wrote in its affidavit, the underlying assumption is that by entering a marriage, a man has entered into an understanding with the woman that her consent to have relations will always be available. According to the Centre, declaring non-consensual sex in marriage as rape “may severely impact the conjugal relationship and may lead to serious disturbances in the institution of marriage.”
According to a 2016 National Family Health Survey (2015-2016) 83% of married women aged between 15 and 49 blamed their husbands for sexual violence. In 2017, the International Centre for Research on Women and the United Nations Population Fund studied 9,500 respondents in seven states of India. The report found that 17 per cent of the wives announced sexual viciousness from spouses while 31 per cent of the men — one in three—admitted to subjecting their wives to sexual savagery.
In 2013, the Justice Verma Committee, formed after the 2012 Nirbhaya gangrape case, had included criminalisation of marital rape as a recommendation. However, the then-UPA-II government had also dismissed this recommendation, citing social factors such as poverty and illiteracy that would make the law difficult to implement.
In its affidavit, the Union government asserts that marital relationships inherently involve an expectation of reasonable sexual access between spouses, that differentiate it from other sexual violence cases. Subjecting a husband to the same penalties as those on a man who rapes a woman outside of marriage would be “excessive” said the Centre.
The government further said that criminalising marital rape would affect the Seventh Schedule, and that it needed to consult all stakeholders—including state governments—before changing the law. It added that women have a remedy against sexual abuse through the existing laws, such as those dealing with cruelty towards married women.
Globally, marital rape has been recognised as a violation of human rights and is criminalised in many countries. The United Nations has repeatedly called for an end to the marital rape exception, urging nations to recognise the bodily autonomy and consent of women in marriage. The UN’s 2019 report emphasised that a woman's home can be one of the most dangerous places for her, and a significant portion of female homicide victims are killed by their partners.