The Delhi High Court is going to hold the final hearing on criminalising marital rape on Friday, August 23. NGO RIT Foundation filed the petition that seeks criminalization of marital rape in India. National Family Health Survey (NFHS) conducted in 2015-16, and released earlier this year, shows that 33 per cent of married or now divorced women have experienced physical, sexual, or emotional spousal violence and sexual violence is most often committed by individuals with whom women have an intimate relationship.
“We are fighting to change the existing law in India where Section 375 from the Indian Penal Code defines rape as sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age. However, exception two from the same section states that ‘sexual intercourse by a man with his own wife, the wife not being under 18 years of age, is not rape’,” explains Raghav Sethi, Advocate and Legal Counsel for RIT Foundation.
“In India generally it is looked as if it is the duty of the wife to succumb to the sexual needs of her husband irrespective of the fact that he may be torturing her and misusing his rights as a husband."
All India Democratic Women’s Association (AIDWA) is also a petitioner in this case. SheThePeople.TV spoke to Mariam Dhwale, General Secretary of AIDWA on the matter and she says, “In India generally it is looked as if it is the duty of the wife to succumb to the sexual needs of her husband irrespective of the fact that he may be torturing her and misusing his rights as a husband. It is mostly understood in the society that the wife should be serving the husband in every way despite her wish.”
The Central Government had said in its submission to the High Court in October 2018, that criminalizing marital rape will “destabilize the institution of marriage” and “what may appear as marital rape to an individual wife, it may not appear so to others.”
Dhwale opposes the argument that criminalizing marital rape will break up marriages as she says that marriages are breaking up anyway. “If one wants to promote marriage then it has to be on the basis of democratic and equal rights. How can you preserve something through repression?” she asks.
However, the Delhi High Court in the previous hearing held in July observed that marriage does not mean that a woman is always consenting to physical relations with her husband.
The Constitutional Bench comprising Acting Chief Justice Gita Mittal and C Hari Shankar stated that both men and woman in a relationship have a fundament right to consent.
The Constitutional Bench comprising Acting Chief Justice Gita Mittal and C Hari Shankar stated that both men and woman in a relationship have a fundamental right to consent. “Marriage does not mean that the woman is all time ready, willing and consenting (for establishing physical relations). The man will have to prove that she was a consenting party,” the bench had stated in the hearing that took place in July last year.
India is one of the many countries in the world which has not yet made marital rape illegal. The existing law on rape in India has an exception where rape within a marriage or at home, perpetrated by the husband, is not a crime. Only 64 countries across the world criminalize marital rape, as per a UN Women report. This means three billion women and girls live in countries where rape within marriage is not explicitly criminalized. In the Asia Pacific, it is represented by more than half the countries in the region.