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Why the 'Marital Rape Exemption' in Criminal Law Must Go

The Supreme Court is poised to deliver a landmark judgement that may make marital rape a crime, a fiercely debated subject with roots in colonial law.

The Supreme Court of India is poised to deliver a landmark judgement that may make it a crime for a husband to rape his wife.

In recent months, the court has heard a batch of petitions that have challenged the current “marital rape exemption” to the criminal offence of rape. The judgment, expected to be handed down in the coming months, may bring India in line with the almost 150 countries that have already criminalised marital rape around the world.

The act is alarmingly common across India: Among married women aged 18-49 who have ever experienced sexual violence, 83% report their current husband, and 13% report a former husband as a perpetrator, the latest National Family Health Survey shows.

Marital rape already has civil remedies in the Protection of Women from Domestic Violence Act (PWDVA) 2005 under the concept of sexual violence as a form of domestic violence, as well as in matrimonial law, which allows for divorce and judicial separation on the ground of ‘cruelty’.

However, the criminal law provision on rape has an exception for husbands. Exception 2 to Section 375 of the Indian Penal Code states: “Sexual intercourse or sexual acts by a man with his own wife …is not rape.”

Another provision (Section 376B of the Indian Penal Code) makes a husband’s rape of his wife who has separated from him a criminal offence punishable with a lesser penalty than in other cases of rape.

Also read: Why Is Outlawing Marital Rape Still a Distant Dream in India?

These provisions are remnants of British colonial law that reflect the then-existing English legal standard. While the marital rape exemption was overturned in England in 1991 through a judgment, India is still grappling with the ramifications of the exemption in 2023.

The provisions reinforce and embed in law the notion of a husband’s ‘ownership’ of his wife’s person – which is incongruent with the Indian constitutional guarantee to all of right to life, dignity, equality and non-discrimination on grounds including sex.

In May 2022, a two-judge Division Bench of the Delhi high court delivered a split judgment, with one judge striking down the marital rape exemption as unconstitutional, and the other upholding the constitutionality of the exemption.

The judicial reasonings for the findings contrast starkly.

Justice Rajiv Shakdher found that the marital rape exception violates provisions of the Indian constitution as it leads to “denial of bodily autonomy and agency of married women, which must be rectified”. He further observed that the marital rape exemption “suffers from manifest arbitrariness and discrimination as a crime as heinous as rape is not recognised as an offence in marriage”.

Justice Hari Shankar, meanwhile, wrote that within a marriage, a “cut and dry” approach cannot be adopted. He argued that, often, consent is given for sexual intimacy though will may not exist, and the state does not have the right to interfere in the private space within a marital relationship.

His reasoning resonates with a much-criticised judgment of the Delhi high court in 1984 when it was stated that “introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for”.

Much water has flown under the bridge since the 1990s when feminist scholarship analysed the public-private dichotomy, drawing attention to the manner in which the domestic sphere – which is a primary site of inequality for women – was kept shielded from regulation by law and policy that may protect and promote women’s rights.

The concept of privacy in law is often a double-edged sword for women. When associated with individual dignity, bodily integrity, and sexual autonomy, it can be a tool for women to assert their rights.

But when the privacy of the family seeks protection from ‘external interference’ – including of law – it can potentially harm the rights of women, especially given gendered power dynamics within the family.

In several instances, state responsibility has already countered the public-private dichotomy to protect women’s rights: Enacting section 498A of the Indian Penal Code, which defines and punishes cruelty on a wife by husband and his relatives as well as Protection of Women from Domestic Violence Act (PWDVA), 2005 and Dowry Prohibition Act 1961 are good examples.

They convey a clear, unequivocal message that the domestic sphere is an important sphere for legal intervention, as power dynamics in the home can be exploited by the powerholders to perpetuate violence and discrimination.

In that sense, the patriarchal myth of home as a safe space for all is busted. Justice Hari Shankar’s observations that the state has no right to interfere in the privacy of a marital relationship fly in the face of current legal thinking.

Some critics argue removing the marital rape exemption could undermine the institution of marriage.

The Justice Verma Committee famously recommended removing the marital rape exemption in its 2013 report into how India’s criminal system could better deal with sexual violence. However, the Parliamentary Standing Committee on Home Affairs rejected that recommendation, concluding that if marital rape were criminalised, “the entire family system will be under great stress”.

In 2016, the Union Minister for Women and Child Development argued that there could not be a law against marital rape because marriage was a ‘sacrament’ and due to factors such as poverty, illiteracy and religious beliefs.

During the 2022 proceedings before the Delhi high court, X (formerly Twitter) witnessed a ‘marriage strike’ by men as a counter to a possible move to delete the marital rape exemption.

They felt entitled to rape their wife in marriage, and were ready to boycott marriage if the licence to rape was deleted. Women responded with ‘May #Marriage Strike Remain for Centuries’.

The polarisation focused on the bodily autonomy and sexual integrity of married women vis-à-vis their husbands.

Deleting the marital rape exemption would create a normative standard of acceptable behaviour within a marriage, in line with the Indian constitutional guarantee of fundamental rights.

Additionally, my own research points to the need for law to treat the institution of marriage as one with mutual love, care, and companionship as its foundations, rather than coercion and violence. As a logical corollary, the marital rape exemption breeds coercion and violence in the name of the sanctity of marriage and warrants deletion from the statute books.

Saumya Uma is a Professor of Law and Director, Centre for Women’s Rights, Jindal Global Law School, O.P. Jindal Global University. She researches, writes, and teaches at the intersections of human rights, gender, and the law.

This article first appeared on 360info. Read the original here