By Ramit Sharan
Does an Indian woman have the right to her own body? Can she say no to sex? Not if she is married to the rapist. Despite activism and litigation for years, Indian legal and social systems continue to favour the dominance of husbands over wives, and continue to reject the basic principles of human rights, equality, and dignity of life in favour of the ‘institution of marriage’.
In the latest setback for Indian women, the safeguard for a husband against a rape charge by his wife remained intact in the Indian Penal Code (IPC) after a two-judge bench in the Delhi High Court gave a split ruling on May 11, 2022, while hearing a case against marital rape.
The bench, comprising Justice Rajiv Shakdher and Justice C Hari Shankar, gave opposing rulings. The former deemed the law unconstitutional and “steeped in patriarchy and misogyny” whereas the latter felt that removing the law would hurt marriage as an institution.
The question arises: what kind of an institution demands subjugation of one partner and allows cruelty and inhumanity by the other? And can such an ‘institution’ be the bedrock of a modern democratic society?
“’My body, my right’ is an integral part of the right to personal liberty for every woman. Not protecting personal liberty by refusing to punish a serious infringement violates a wife’s rights under Article 21,” law professor Sarasu Esther Thomas, National Law School of India University, Bengaluru, writes in the Indian Express.
The split verdict came as a result of PILs (public-interest litigation) filed in 2015 and 2017 by the NGOs RIT Foundation and All India Democratic Women’s Association challenging the constitutionality of Section 375 of IPC with the aim to remove the law that grants an exception to husbands in Indian rape law. It also addressed a case filed by a marital-rape survivor in 2017.
However, the NGOs Men Welfare Trust and Hridey opposed the criminalisation of marital rape.
According to the latest National Family Health Survey (NFHS) conducted by the government of India, around 30 percent of women in India aged 18-49 reported having experienced spousal violence.
The NFHS survey of 724,115 women found the average Indian woman is 17 times more likely to face sexual violence from her husband than from anyone else. Around one in five women is subjected to non-consensual marital sex.
India is one of only 32 countries in the world, including Pakistan, Bangladesh and Libya, where marital rape is still not considered a crime. “The experiences of countries where the offence is recognised give no evidence of a weakening or destruction of marriage or, more importantly, a causation between the ability of wives to prosecute their husbands for rape and the weakening or destruction of marriage,” writes Shraddha Chaudhary, a PhD student at the Faculty of Law, University of Cambridge, and lecturer at Jindal Global Law University, India.
In 2021, the global human-rights organisation Equality Now released a report Sexual Violence in South Asia: Legal and Other Barriers to Justice for Survivors, which looked at rape laws in India, including those relating to marital rape. It calls on governments to take urgent action to address sexual violence, improve access to justice for survivors, and end impunity for perpetrators.
According to this report, consent to marriage cannot and should never be construed as lifelong consent to sex. A marital relationship does not act as grounds to defend against rape. It highlighted that wives can be treated as the property of their spouses due to impunity from rape within marriage, permitted by the law. It takes away a woman’s right over her own body.
The Indian Supreme Court ruled on October 11, 2017, that part of the Indian Penal Code which excused marital rape of minors aged 15 – 18 was unconstitutional. However, the exception for marital rape of adult women remained.
Exception 2 to Section 375 of the IPC states: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
“Does not the ‘equal protection of the law’ under Article 14 minimally guarantee equal protection to women under the Indian Penal Code against sexual assault, regardless of their marital status? By denying such equal protection, solely on the ground of gender and marital status, women are not recognised as rights-bearing persons within the marriage who have equal protection of laws against violent sexual assault,” opines Jayna Kothari, executive director, Centre for Law & Policy Research, Bengaluru.
Senior advocate Colin Gonsalves, who is representing one of the petitioners in the PIL, said that they will be moving to the Supreme Court regarding this matter. Other cases in the Gujarat High Court and Karnataka High Court on the subject of marital rape are also pending appeals. Systemic change is in order.
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