Stating that what “may appear to be marital rape” to a wife “may not appear so to others”, the central government took a stand against criminalising marital rape, in its affidavit to the Delhi High Court on Monday, on the ground that it “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”. “As to what constitutes marital rape and what would constitute marital non-rape needs to be defined precisely before a view on its criminalisation is taken,” states the Centre’s affidavit.
It goes on to cite the “rising misuse of Section 498A of IPC”, commonly known as the dowry law, to demonstrate how laws dealing with violence against women can be misused “for harassing the husbands”.
The central government was responding to a bunch of petitions which wanted marital rape to be legally recognised and made a punitive offence.
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Section 375 of the IPC dealing with rape makes an exception for such instances within marriages and holds that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”. No other statute or law recognises marital rape, and victims only have recourse to civil remedies provided under the Protection of Women from Domestic Violence Act, 2005.
The Centre’s affidavit holds that states should implead in the matter, since criminal law is on the concurrent list and implemented by states — and given the vast diversity in cultures across states. “The fact that other countries, mostly western, have criminalised marital rape does not necessarily mean India should also follow them blindly. This country has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, mindset of the society, vast diversity, poverty, etc., and these should be considered carefully before criminalising marital rape,” it states.
The Justice Verma committee, formed in the wake of the 2012 Delhi gangrape, had recommended removing the exception made for marital rape in the law. Similarly, the report ‘Status of Women in India’, by the high-level Pam Rajput committee of the Ministry of Woman and Child Development, criticised the legislature for its failure to criminalise or even recognise marital rape in the Criminal Laws (Amendment) Act 2013 enacted following the Justice Verma committee report.
The Centre, in its submission to the Delhi High Court, stated that the judgment as to whether a sexual act is a marital rape or not will rest entirely with the wife. “The question is what evidence the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife,” it states.
The submission adds that the Law Commission on Review of Rape Laws and the Department-Related Parliamentary Standing Committee on Home Affairs have examined the issue but not recommended the criminalisation of marital rape.
The Centre has instead advocated the need for “moral and social awareness” to stop such an act. Senior Advocate Colin Gonsalves, who is appearing in the case for one of the petitioners (a marital rape victim), pointed out that till date, 51 countries have criminalised marital rape, beginning with Poland in 1932. “By the seventies, much of the developed world had criminalised it. The United States did it between 1970 and 1993, South Africa in 1993, even Nepal criminalised it in 2006,” he said.
He added that the United Kingdom, whose common law was followed by India, made marital rape a criminal offence in 1991. “Other countries such as Canada and Ireland, which follow the common law, have all over the years made the act an offence,” he said.
The petitions cite several studies to show the prevalence of the issue in India. A 1999 study, ‘Domestic Violence in Northern India’, published in the American Journal of Epidemiology, looked at the nature of wife abuse by 6,700 married men from five districts of northern India. It found that 18-40 per cent of the men in each district had non-consensual sex with their wives, and 4-9 per cent physically forced their wives to have sex.
A more recent study in 2014, ‘Reporting and incidence of violence against women in India’, uses data from the National Crime Records Bureau and the National Family Health Surveys to show the extent of under-reporting in such cases. It finds that only about 0.6 per cent, or one in 167 incidents of sexual violence by husbands, are reported.