It is time the Union government took a categorical stand on the issue of treating marital rape as a criminal offence. It informed the Delhi High Court earlier this week that it was having a relook at its position spelt out over five years ago. In 2017, the Government had opposed the removal of the statutory exception in Section 375 of the IPC for rape committed by a man on his wife, if she is not below 18 years of age. The remarks of the Union Minister for Women and Child Development, Smriti Irani, in Parliament also do not throw much light on the matter. She merely said the Government was engaged in a process to introduce comprehensive amendments to criminal law, indicating perhaps that the criminalising of marital rape is unlikely to be taken up in isolation. At the same time, she observed that it would not be advisable to condemn every marriage as a violent one, and every man a rapist. One can only interpret this as a sign that the Government is quite wary of agreeing with the body of opinion that favours recognising rape as something that could happen within a marriage too. In 2016, the Government had rejected the concept of marital rape, saying it “cannot be applied to the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs and the mindset of the society to treat marriage as a sacrament”.
There is no indication as to the sort of departure from this formulation, if any, that the proposed reconsideration will lead to. However, the question no longer brooks responses marked by ambivalence or tending towards buying time. One cannot expect the courts to delay indefinitely a ruling on the constitutionality of the existing exception in rape law. The conventional arguments against criminalising rape within marriage — that the institution of marriage will be ruined and that it is liable to misuse — no longer hold good. The country has adopted a domestic violence law that enables complaints against physical and sexual abuse. The IPC also holds cruelty to be an offence in a domestic context. Therefore, making marital rape a criminal offence is unlikely to ruin the institution of marriage any more than a complaint of domestic violence or cruelty would. The exception given to marital rape harks back, as the report by the Justice J.S. Verma committee noted while recommending its removal, to an outdated notion of marriage that treated the wife as the husband’s property. The notion of ‘implied consent’ within marriage is also reflected in marriage laws that allow for “restitution of conjugal rights”, a remedy that either party to a marriage may avail of. Looking at marriage through the anachronistic lens of ‘coverture’ — the view that the wife is under the husband’s authority always — should not be allowed to override the autonomy of married women over their person.
