A story from trendy India: A person rapes his spouse so brutally she dies. She leaves a dying declaration earlier than a Justice of the Peace. There’s a publish mortem that finds grievous accidents. A trial court docket sentences the person to 10 years in jail. He appeals and the Chhattisgarh excessive court docket acquits him of all costs, rape, unnatural intercourse and even culpable murder. Off he goes, free as a chook to reside the rest of his life as he chooses.
Our legislation doesn’t acknowledge the crime of marital rape. In reality, our rape legal guidelines, rewritten below public strain in 2013, make an ‘exception’ for husbands, supplied their wives are over 18 (small mercies).
That is by design. In October final yr, the ministry of residence affairs advised the Supreme Courtroom that husbands do not need a elementary proper to “violate the consent of their wives”—a elaborate means of claiming rape—but when Parliament eliminated the marital rape exception, then the establishment of marriage can be destroyed.
Why does the federal government have any curiosity in preserving an abusive marriage; one the place the spouse is the property of her husband and her consent is irrelevant? In 1736 Sir Matthew Hale declared: “The husband can’t be responsible of rape dedicated by himself upon his lawful spouse.” We at the moment are in 2025, certainly one of 32 nations which have but to criminalise marital rape.
I might argue that rape in marriage is worse than rape by a stranger, because it occurs repeatedly and because it denies the sufferer even the dignity of having the ability to file a grievance. The info is grim: The Nationwide Household Well being Survey-5 finds that when girls are subjected to sexual violence, the perpetrators in 82% of the circumstances are their husbands; 99.1% of sexual assault by husbands are by no means reported, evaluation by Mint discovered.
Apart from the immorality of forcing wives to reside with their rapists, there may be the problem of judicial confusion. In 2022, two judges of the Delhi excessive court docket sat all the way down to adjudicate. Justice Rajiv Shakdher mentioned non-consensual intercourse in marriage is the antithesis of what matrimony stands for in trendy instances—a relationship between equals. A spouse has the fitting to withdraw consent at any time, he mentioned. Whereas justice C. Hari Shankar agreed there might be no compromise on the sexual autonomy of girls, he added cryptically: “Simply as each incident of taking of the life by one, of one other, isn’t homicide, each incident of non-consensual intercourse of a person with a lady isn’t rape.”
The case was then bumped as much as the Supreme Courtroom, the place it’s ready to be heard.
Till then girls should proceed to endure. Final yr a Madhya Pradesh choose quashed a primary info report towards a husband saying there was nothing unnatural about having non-consensual anal intercourse together with his spouse. In August 2021, a person who raped his spouse with such violence that she was left paralysed was in a position to get anticipatory bail from Maharashtra.
Does the federal government owe nothing to its girls residents who’ve been promised equality by our Structure?
Happily, some courts are catching up. In 2022, the Karnataka excessive court docket noticed the exception clause as an “inequality that destroys the soul of the Structure.” Holding a husband responsible of raping his spouse, the choose famous {that a} “brutal act of sexual assault on the spouse, towards her consent, albeit by the husband, can not however be termed rape,” and allowed the framing of costs. The husband has filed an enchantment, now pending within the Supreme Courtroom.
“There’s not a single case in India of profitable prosecution of a person by his spouse in India for rape,” says senior advocate Indira Jaising who appeared for the spouse within the 2022 Karnataka excessive court docket matter. Provides advocate Rohin Bhatt who additionally appeared for the spouse: “The allegations had been so ghastly that the excessive court docket held that even the exception couldn’t present him an immunity from prosecution.”
A lot of the chatter justifying why the exception ought to stay is sexist: Girls will misuse it and so forth. Others say that ladies produce other treatments in legislation, towards home violence, for example, and cruelty. However authorized safety from one other crime doesn’t give a raped spouse entry to State help, compensation, medical help and fast-track courts.
Within the not-so-distant previous, India’s Supreme Courtroom has delivered a collection of judgments breathtaking in standing up for privateness, decriminalizing consensual same-sex relations in addition to adultery, and upholding the rights of trans folks. It should hear the marital rape exception with out additional delay. Too many lives depend upon it.
Namita Bhandare writes on gender. The views expressed are private
