Delhi HC gives split verdict on Marital Rape

Context

Two judges of the Delhi High Court gave a split verdict on the question of criminalising rape within marriage, leaving the law unchanged.

• Seems like the matter will now be referred to a larger bench.

What is Marital Rape?

• Marital rape is the act of sexual intercourse with one’s spouse without her consent.
• It is no different manifestation of domestic violence and sexual abuse.
• It is often a chronic form of violence for the victim which takes place within abusive relations.

What’s the issue? 

• This exemption essentially allows a marital right to a husband who can with legal sanction exercise his right to consensual or non-consensual sex with his wife. This amounts to rape too.
• It undermines consent of a woman based on her marital status.

History of martial rape law in India

• The Domestic Violence Act, 2005 hints at marital rape by any form of sexual abuse in a live-in or marriage relationship.
• However, it only provides for civil remedies. There is no way for marital rape victims in India to initiate criminal proceedings against their perpetrator.
• The need to remove this marital rape exception was rejected by the Law Commission of India’s 172nd report in 2000, while considering several proposals to reform India's laws on sexual violence.

Outcome of the split verdict

• Spousal intimacy: In a marriage, conjugal expectation is a two-way street, where “consent is given as a part of spousal intimacy although the will to engage may be absent”.
• Need for written agreement: If every such case is treated as marital rape, then the only way partners in a marriage may survive would be by drawing up a detailed written agreement.
• Burden of evidentiary record: This would lead to creating a detailed evidentiary record of every act of intimacy and/or by inviting a third party to act as a witness.
• Defying marital obligations: The HC said that marriage was accompanied by obligations that the partners had to bear, including conjugal expectations, financial obligations and, finally, duty towards progeny.
• Sexual liberty of spouses: The bench also underlined the signs of injury on a partner need not necessarily mean there had been non-consensual sex as “in the age of sexual liberation”, injuries could be a sign of “passion”.
• Cruelty not rape: Forced sexual intercourse between a husband and wife cannot be treated as rape. At worst, it can be treated as sexual abuse found in Section 3 of the Domestic Violence Act.
• Clash of ego: A wife cannot prescribe a particular punishment that can be imposed on the husband ‘to satisfy her ego’,” the judge said.

How is marital rape treated around the world? 

• According to Amnesty International data, 77 out of 185 (42%) countries criminalise marital rape through legislation.
• Australia (1981), Canada (1983), South Africa (1993) have enacted laws that criminalise marital rape.
• In many countries, it is either not mentioned or is explicitly excluded from rape laws.
• The United Nations has urged countries to end marital rape by closing legal loopholes, saying that “the home is one of the most dangerous places for women”.