Marital rape needs to be recognised as rape

The issue of women’s safety has taken centre stage yet again. While the Kolkata rape-murder sparked a nationwide conversation on ensuring safe spaces for working women and tightening punishments for sexual offences, a clutch of petitions before the Supreme Court have stirred a debate on the constitutionality of the “marital rape exception” in India’s penal laws. The Supreme Court, on Wednesday, deferred the hearing of the matter given it is unlikely to be decided before the retirement of Chief Justice of India (CJI) DY Chandrachud on November 10; a bench comprising justices Chandrachud, JB Pardiwala and Manoj Misra had started hearing the matter on October 17.
The petitioners have contended that there can be no exception to heinous crimes like rape. Even after the introduction of new criminal laws, it is a blot on our legislature that the Bharatiya Nyaya Sanhita retains the protection for marital rape. The Union government has filed an affidavit that criminalisation of marital rape would be “excessively harsh”. This has now left the matter open to judicial determination. It is now hoped that the Supreme Court, which took serious exception to the Kolkata rape murder issue, will put an end to the regressive mindset and abolish this legislative aberration.
The arguments against criminalising marital rape are bewildering, baseless and outdated. When Dravida Munnetra Kazhagam (DMK) Member of Parliament Kanimozhi Karunanidhi asked the minister of State for home affairs in Rajya Sabha whether the government of India will remove the exception to marital rape from the law (April 29, 2015), he replied in the negative. The minister said that the “concept of marital rape cannot be applied in Indian context” due to “illiteracy, poverty, myriad social customs and values, religious beliefs, and mindset of the society to treat the marriage as a sacrament”.
When we see how much society has changed in the last decade, we also factor in the developments in jurisprudence around gender justice. Beginning in 2018, we witnessed the Supreme Court adopt progressive stances when it comes to the question of sexuality or marital status. In the case of Navtej Johar and Ors vs Union of India, 2018, the Court decriminalised same-sex relations. More recently, in the case of X v. Principal Secretary, Health and Family Welfare Dept, GNCTD, 2022, the Court explored universal principles of dignity and gender equality. In this case, the opinion of justice Chandrachud (he was yet to become CJI) equated the status of married, unmarried and single women. Today, individuals in live-in relationships also benefit from the provisions of the Protection of Women from Domestic Violence Act, 2005.
The closest the Supreme Court came to dealing with the issue of marital rape was in the case of Independent Thought v. Union of India, 2017, which dealt with one portion of the exception that concerned itself with the age of the victim in the case of child marriages. In that case, the apex court took a rights-based approach affirming the principles of bodily autonomy and consent and took a strong view that a rapist cannot convert into a non-rapist through marriage with the victim. However, the Court was only dealing with the question of sexual intercourse between a man and his wife who is younger than 18 years of age. The Court, however, stopped short of dealing with the question of rape within a marriage when the wife is over 18 years of age.
The concept of criminalising marital rape is not novel to the world. At least 150 countries such as the United States, the United Kingdom, and France, have declared marital rape a crime. Australia, the first common law country to do so, made rape in marriage a criminal offence in 1976. India is one of the very few countries still on the wrong side of the fence. The contention of the Union of India before the Supreme Court that there are other remedies available under the penal laws and the Protection of Women from Domestic Violence Act is a calculated effort to deflect the issue at hand. Another argument of the Union that the issue is a “social question” more than a “constitutional question” is an attempt to oust the jurisdiction of the constitutional courts.
India claims to be a rising superpower. Yet, we are still debating whether marriage can provide immunity against the commission of a criminal offence. Once again, we are left to look to the Supreme Court to do what should have been done a very long time ago. The constitutional framework of India must be activated to eschew this regressive law that strikes at the root of gender justice.
The Supreme Court needs to send a strong and clear signal that marriage cannot provide immunity to crimes and that rape is a matter of human rights. This legal aberration must be corrected so that women are no longer silenced within the confines of marriage. The reluctance to do so will stall the progress that the Supreme Court has made so far in safeguarding gender justice.
Manuraj Shunmugasundaram is a DMK media spokesperson and advocate at the Madras high court. Inputs were provided by Arya Abaranji PS. The views expressed are personal