Marital rape is still not a crime in some parts of India
In August of this year, a high court in the central state of Chhattisgarh ruled that sexual intercourse or any sexual act by a husband with their spouse does not constitute rape, even if it is forced or against the consent of a legally wedded wife.
The high court's decision sparked outrage and criticism because it came just days after a two-judge bench of the Kerala High Court upheld a family court's decision to allow divorce on the grounds of marital rape because it constitutes physical and mental cruelty.
According to the Kerala High Court, "in a married life, sex is a reflection of the intimacy of the spouse."
"The woman's evidence establishes that she was subjected to all manner of perversion against her will." Marital rape occurs when the husband believes that his wife's body owes him."
"Constitutionally, the rape exception cannot be justified because it violates the rights of wives." It is discriminatory because it draws an arbitrary and unreasonable distinction between wives and non-wives," says Pratiksha Baxi, a sociologist and author of 'Public Secrets of Law.'
"It infringes on women's rights to privacy, health, life, and liberty."
Others, such as Supreme Court advocate Monika Arora, argue that it is impossible to determine when a wife withdrew consent behind closed doors.
"If all sexual acts by a man with his own wife begin to qualify as marital rape, then the wife will be solely responsible for determining whether it is marital rape or not." "Her testimony will be enough to convict the accused," writes Arora in a recent article.
"As a result, broad-based consensus is required before reaching a final decision on the issue."
Outrage over raids on the homes of Indian human rights activists India invites women to attend a prestigious military academy. Only 36 countries in the world had not criminalised marital rape as of November 2020, and India is one of them, trapping millions of women in violent marriages. Members of this extraordinary league include Pakistan, Bangladesh, Afghanistan, Botswana, Iran, Nigeria, and Libya.
Because raping a wife is not a crime, the National Crime Records Bureau does not keep separate statistics on marital rape.
The high court's decision sparked outrage and criticism because it came just days after a two-judge bench of the Kerala High Court upheld a family court's decision to allow divorce on the grounds of marital rape because it constitutes physical and mental cruelty.
According to the Kerala High Court, "in a married life, sex is a reflection of the intimacy of the spouse."
"The woman's evidence establishes that she was subjected to all manner of perversion against her will." Marital rape occurs when the husband believes that his wife's body owes him."
Reflection of patriarchy in law
Every time a raped wife appears in court, she is told that an exception in the rape law presumes her consent and grants her husband immunity from rape prosecution."Constitutionally, the rape exception cannot be justified because it violates the rights of wives." It is discriminatory because it draws an arbitrary and unreasonable distinction between wives and non-wives," says Pratiksha Baxi, a sociologist and author of 'Public Secrets of Law.'
"It infringes on women's rights to privacy, health, life, and liberty."
Others, such as Supreme Court advocate Monika Arora, argue that it is impossible to determine when a wife withdrew consent behind closed doors.
"If all sexual acts by a man with his own wife begin to qualify as marital rape, then the wife will be solely responsible for determining whether it is marital rape or not." "Her testimony will be enough to convict the accused," writes Arora in a recent article.
"As a result, broad-based consensus is required before reaching a final decision on the issue."
Outrage over raids on the homes of Indian human rights activists India invites women to attend a prestigious military academy. Only 36 countries in the world had not criminalised marital rape as of November 2020, and India is one of them, trapping millions of women in violent marriages. Members of this extraordinary league include Pakistan, Bangladesh, Afghanistan, Botswana, Iran, Nigeria, and Libya.
Because raping a wife is not a crime, the National Crime Records Bureau does not keep separate statistics on marital rape.
In light of India's obligations under the Convention on the Elimination of All Forms of Discrimination Against Women, one of the key recommendations of the Justice Verma Committee, which was formed in 2012 to reform criminal law, was to remove the marital-rape exception.
Courts' recent responses to allegations of marital rape have been contradictory. When the Kerala High Court upheld marital rape as a valid ground for divorce, a court in the western state of Maharashtra granted anticipatory bail to a man, concluding that forcible sex with his wife was not a "illegal thing," despite the fact that she claimed it paralysed her.
Similarly, the Gujarat High Court ruled that "a law that does not provide equal protection to married and unmarried women creates conditions conducive to marital rape."
Despite a slew of decisions by the country's Supreme Court upholding women's bodily integrity and privacy, legislative amnesty for marital rape remains on the books.
Courts have also been wary of criminalising marital rape because they believe it will undermine the institution of marriage.
Women's groups have argued that there is an urgent need for the judiciary to recognise marital rape as an offence under the Indian Penal Code, especially now that the pandemic-induced lockdown has resulted in an increase in domestic and sexual violence cases against women.
Growing clamour to criminalize rape
This recommendation came in the aftermath of a gang rape of a paramedic student in the capital in 2012, which sparked outrage in the country and received international media attention.Courts' recent responses to allegations of marital rape have been contradictory. When the Kerala High Court upheld marital rape as a valid ground for divorce, a court in the western state of Maharashtra granted anticipatory bail to a man, concluding that forcible sex with his wife was not a "illegal thing," despite the fact that she claimed it paralysed her.
Similarly, the Gujarat High Court ruled that "a law that does not provide equal protection to married and unmarried women creates conditions conducive to marital rape."
Despite a slew of decisions by the country's Supreme Court upholding women's bodily integrity and privacy, legislative amnesty for marital rape remains on the books.
Courts have also been wary of criminalising marital rape because they believe it will undermine the institution of marriage.
Women's groups have argued that there is an urgent need for the judiciary to recognise marital rape as an offence under the Indian Penal Code, especially now that the pandemic-induced lockdown has resulted in an increase in domestic and sexual violence cases against women.