Central Govt. Defends Marital Rape in the Supreme Court!

Central Govt. Defends Marital Rape in the Supreme Court, says criminalising it ‘extremely harsh’!!

KAKALI DAS

Let me start with a complex yet fundamental question: what defines rape? While one might say it refers to forced sexual intercourse, the legal definition is more nuanced. In India, for example, the law defines rape as sexual acts committed by a man against a woman without her consent.

However, this definition is not absolute. There are two exceptions: the first involves medical procedures, and the second pertains to sexual acts by a man with his wife if she is above 18 years of age. This effectively means that marital rape is not recognized as a crime in India.

It is this second exception that has sparked intense debate. It has been repeatedly challenged in court, tested over time, and has stirred both anger and confusion. Now, for the first time, the Government of India has officially defended its position on the matter.

The Home Ministry has submitted an affidavit to the Supreme Court of India stating, “A husband certainly does not have any fundamental right to violate the consent of the wife. However attracting the crime in the nature of rape can be arguably considered to be excessively harsh and therefore, disproportionate,” according to the Government of India.

In other words, classifying marital rape as a crime would be considered excessively harsh. Regardless of your stance on this issue, it’s likely that you hold strong opinions. Let’s explore both sides of the debate—why do some argue that labeling marital rape as rape is excessively harsh?

The government has provided three reasons. First, marriage is a relationship that is considered ‘unique’, and criminalizing marital rape could disrupt the institution of marriage. Second, in a marriage, sexual consent is often implied, leading to the assumption that consent is granted. Third, there are existing laws addressing domestic violence that already encompass sexual assaults, suggesting that a separate law for marital rape is unnecessary.

As expected, these arguments have faced widespread criticism. Let’s break down the counterpoints one by one.

• Disturbance of marriage – If rape doesn’t disrupt a relationship, what does? Is it only the law criminalizing it that causes disruption? Violence within marriage is widespread in India. 1 in 3 married women experiences some form of abuse from their husbands, and  1 in 25 women face sexual violence, including marital rape.

In the world’s most populous country, this translates to approximately 26 million women facing sexual violence from their husbands. Are we truly committed to upholding the so-called sanctity of marriage in such circumstances? Should women be expected to endure this abuse silently?

• Consent for sex is assumed in a marriage – While consent in matters of sexual abuse may exist in a legal gray area, this assumption effectively undermines women’s agency. Many women feel that refusing sex is taboo. Consequently, 90% of women who experience sexual violence in a marriage do not seek help, often because they fail to recognize it as a crime; instead, they perceive it as their husband’s right.
• The existing laws – While marital rape is mentioned in the Domestic Violence Act, do you know what the penalties entail? They include protection orders, judicial separation, and monetary compensation, but there are no criminal penalties associated with them.

How is this acceptable? Marital rape is classified as a crime in over 100 countries, including Britain, which originally imposed this colonial law on us. Yet India remains one of the few countries—around three dozen—where marital rape is not criminalized. You may be familiar with some other members of this group: Pakistan, Afghanistan, and Saudi Arabia.

Yes, this is indeed a complicated issue. However, one thing is straightforward: the fundamental question we addressed —forced sex is rape, regardless of who perpetrates it—whether it’s a family member, a husband, or a stranger. Forced sex constitutes rape, no matter the circumstances or location.

Whether within a marriage, outside of it, at home, at work, or anywhere else, rape is still rape, regardless of any adjectives attached to it.

Therefore, not criminalizing marital rape does not protect marriages; it only shields the perpetrators.

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