Protection against spousal violence
The Delhi High Court is currently hearing a plea effectively seeking to criminalise marital rape. At present, under an exception in Section 375 of the IPC, which deals with rape, “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”. The arguments in favour of criminalising marital rape include that treating rape as different based on who commits the act is an affront to Article 14 and that removing the exception will provide dignity and recourse to the survivor of marital rape by acknowledging the act as rape. The arguments against the move are that criminalising marital rape will adversely affect the institution of marriage, women facing violence in marriages have other laws that may cover sexual violence, and that the move will lead to a rise in false cases.
Around 150 nations have criminalised marital rape. The arguments against doing so appear to be based on bogies rather than engaging directly with the issue at hand, which is of consent. Does marriage strip a woman of the right to consent to sexual intercourse? Does it strip her of bodily autonomy in the eyes of the law? If so, can that be constitutional? Does the edifice of marriage, as an institution, rest on a woman’s consent being immaterial? How does one view these questions rationally, with the understanding and awareness of women as equal citizens before the law, and respond in favour of the exception protecting husbands from sexually assaulting their wives?
It is time for the exception to go and for marital rape to be criminalised. Given that globally rape and other acts of sexual violence are underreported, it is unlikely that criminalising marital rape will lead to a flurry of cases against husbands. Nearly 30% of women in India, according to the latest National Family Health Survey, say they have faced spousal violence (physical and sexual), yet that is not matched by numbers of actual cases filed under the relevant laws. However, removing the exception will provide some women with an option they otherwise lack, ensure equality and dignity, and centre the importance of consent and autonomy of women.