Union Government Opposes Criminalisation of Marital Rape

Syllabus: GS1/ Society, GS2/ Polity and Governance

Context

• The Union Government told the Supreme Court that criminalizing non-consensual sexual acts within marriage as ‘rape’ could disrupt conjugal relationships and destabilize the institution of marriage.

Background

• The Union government was responding to several public interest litigation petitions seeking to strike down Exception 2 of Section 375 of Indian Penal Code (IPC). 
• The provision excludes non-consensual sexual intercourse by a husband with his wife, if the latter is over 15 years of age, from the definition of ‘rape’.

Arguments For Criminalising Marital Rape

• Marriage is not a license: A marriage should not be viewed as a license for a husband to forcibly rape his wife with impunity.
• Article 21 of Indian Constitution: A woman is entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy is an intrinsic part of Article 21 of the Constitution.
  • In the State of Karnataka v. Krishnappa, the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.
• Article 14 of Indian Constitution: Indian women deserve to be treated equally under article 14 and an individual’s human rights do not deserve to be ignored by anyone, including by their spouse.
• Human Rights Perspective: International human rights treaties like CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), to which India is a signatory, advocate for the criminalization of all forms of sexual violence, including within marriage.
• Global Precedent: Many countries have already criminalized marital rape, recognizing it as a form of sexual violence. India, being a progressive democracy, should align with global standards on protecting women’s rights.

Arguments Against Criminalising Marital Rape

• Destabilize marriage as an institution: It may create absolutely anarchy in families and destabilize the institution of marriage.
• Misuse of law: It may become an easy tool for harassing the husbands by misusing the law similar to the growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of the IPC.
• Implementation issues: Criminalizing marital rape will create issues like veracity of testimony, evidences in the courts etc.
• The Ministry of Home Affairs argued that being married does not take away a woman’s right to give or refuse consent. There are other laws in place to protect a woman’s consent within marriage under Indian Penal Code (IPC).
  • Section 354: Punishes assault or force used to outrage a woman’s modesty.
  • Section 354A: Deals with sexual harassment.
  • Section 354B: Punishes assault or force used with the intent to disrobe a woman.
  • Section 498A: Addresses cruelty by a husband or his relatives.

Way Ahead

• The continuous exemption of marital rape from the purview of criminal law sustains the assumption of the wife as exclusive property of the husband.
• While protecting the institution of marriage is important, laws must also ensure that women’s autonomy and consent are upheld. 
• However merely criminalizing marital rape may not stop it as “moral and social awareness” plays a vital role in stopping such an act.
• India could look to global examples where marital rape has been criminalized, and learn from their approaches to implementing the law while minimizing misuse and ensuring justice.

Source: TH