Marital rape is not yet a criminal offence in India, but this week, a trial court in Delhi may have set the precedent for other courts to treat it on par with any other kind of rape.
While denying bail to a man accused of sodomising his wife under the controversial Article 377, which deals with "unnatural sex", additional sessions judge Kamini Lau made a number of crucial observations. Though lawmakers are “yet to take note of the rampant marital sexual abuse that women suffer silently”, wives who have been sexually abused are entitled to seek state assistance, just like other victims of sexual abuse, she noted.
The court also ordered the Delhi government to take responsibility for the woman, just as it would take care of any other victim of aggravated sexual abuse. “She cannot be discriminated [against] only because she happens to be the wife of the sexual aggressor,” the judge said.
The police had initially booked the man for indulging in cruelty to his wife under Section 498A, but the court chose to apply Section 377 of the Indian Penal Code to this case. People who have been campaigning for the criminalisation of marital rape believe that the judge’s observations are significant.
“The court has interpreted the case in a progressive manner, by recognising that marriage is not an exception to sexual abuse and that it is the state’s duty to protect the victim,” said Monica Sakrani, who teaches law at the Tata Institute of Social Sciences in Mumbai.
Despite this, Sakrani and other lawyers are not sure how far such an observation by a court can go in a country where members of parliament have repeatedly dismissed proposals to recognise marital rape as rape. “The judiciary can only interpret laws, not make them,” said women’s rights lawyer Veena Gowda, who frequently deals with cases of sexual violence within marriage.
Gowda has had to fight all of these cases under the Protection of Women from Domestic Violence Act, which is a civil, not criminal, law. Even if found guilty, the abusive husbands cannot be convicted of rape. “The state has been too scared to bring more and more criminal laws into the realm of marriage,” said Gowda.
This was evident in April, when the government passed the Criminal Law (Amendment) Act 2013 and cleared a host of changes to the old anti-rape laws. Though it expanded the definition of rape, it rejected the proposal to recognise marital rape. The Justice Verma Committee appointed to review laws for sexual offences had strongly recommended criminalising martial rape, noting that “denying married women their right to consent reduces them to ‘no more than the property of their husbands’”.
Instead, parliamentarians chose to retain an exception to Section 376 of the IPC, which states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. In other words, if the wife is 15 or older, her husband cannot be accused of raping her.
This clause is worrying not just because it legitimises a husband forcing sex on his wife. It is also completely incongruent with other Indian laws when it comes to the age of consent for sex and marriage for girls, which is 18.
This would imply that between the ages of 15 and 18, a married girl has no protection from rape. But had she been unmarried, she would have been considered incapable of consent.
In practice, religious personal laws allow girls below 18 to marry under certain circumstances. For instance, the Hindu Marriage Act allows a girl above 16 to be married with her father's consent.
A host of women’s rights groups have been protesting against this clause for decades, but the state has only one major argument in response – that recognising marital rape is a threat to the institution of marriage.
In March 2013, before the new anti-rape bill was passed, the Parliamentary standing committee on home affairs published a report of its discussions on the Justice Verma Committee’s recommendations. Several members of the standing committee claimed that criminialising marital rape had the potential to destroy the institution of marriage, the report said. “In India, for ages, the family system has evolved and it is moving forward…if the marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice,” it said.
The same month, when the anti-rape bill was being discussed in the Lok Sabha, Bharatiya Janata Party MP Sumitra Mahajan is reported to have said, “People these days get divorced over insignificant issues. Marital rape shouldn’t be made into a criminal offence…Things like these should be sorted out within the family or by counselling. There is no need for a law.”
The Supreme Court itself has backed this notion, said Sakrani. “The Court has ruled that a wife’s refusal to have sex with her husband amounts to cruelty and is a grounds for divorce,” she said.
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While denying bail to a man accused of sodomising his wife under the controversial Article 377, which deals with "unnatural sex", additional sessions judge Kamini Lau made a number of crucial observations. Though lawmakers are “yet to take note of the rampant marital sexual abuse that women suffer silently”, wives who have been sexually abused are entitled to seek state assistance, just like other victims of sexual abuse, she noted.
The court also ordered the Delhi government to take responsibility for the woman, just as it would take care of any other victim of aggravated sexual abuse. “She cannot be discriminated [against] only because she happens to be the wife of the sexual aggressor,” the judge said.
The police had initially booked the man for indulging in cruelty to his wife under Section 498A, but the court chose to apply Section 377 of the Indian Penal Code to this case. People who have been campaigning for the criminalisation of marital rape believe that the judge’s observations are significant.
“The court has interpreted the case in a progressive manner, by recognising that marriage is not an exception to sexual abuse and that it is the state’s duty to protect the victim,” said Monica Sakrani, who teaches law at the Tata Institute of Social Sciences in Mumbai.
Despite this, Sakrani and other lawyers are not sure how far such an observation by a court can go in a country where members of parliament have repeatedly dismissed proposals to recognise marital rape as rape. “The judiciary can only interpret laws, not make them,” said women’s rights lawyer Veena Gowda, who frequently deals with cases of sexual violence within marriage.
Gowda has had to fight all of these cases under the Protection of Women from Domestic Violence Act, which is a civil, not criminal, law. Even if found guilty, the abusive husbands cannot be convicted of rape. “The state has been too scared to bring more and more criminal laws into the realm of marriage,” said Gowda.
This was evident in April, when the government passed the Criminal Law (Amendment) Act 2013 and cleared a host of changes to the old anti-rape laws. Though it expanded the definition of rape, it rejected the proposal to recognise marital rape. The Justice Verma Committee appointed to review laws for sexual offences had strongly recommended criminalising martial rape, noting that “denying married women their right to consent reduces them to ‘no more than the property of their husbands’”.
Instead, parliamentarians chose to retain an exception to Section 376 of the IPC, which states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. In other words, if the wife is 15 or older, her husband cannot be accused of raping her.
This clause is worrying not just because it legitimises a husband forcing sex on his wife. It is also completely incongruent with other Indian laws when it comes to the age of consent for sex and marriage for girls, which is 18.
This would imply that between the ages of 15 and 18, a married girl has no protection from rape. But had she been unmarried, she would have been considered incapable of consent.
In practice, religious personal laws allow girls below 18 to marry under certain circumstances. For instance, the Hindu Marriage Act allows a girl above 16 to be married with her father's consent.
A host of women’s rights groups have been protesting against this clause for decades, but the state has only one major argument in response – that recognising marital rape is a threat to the institution of marriage.
In March 2013, before the new anti-rape bill was passed, the Parliamentary standing committee on home affairs published a report of its discussions on the Justice Verma Committee’s recommendations. Several members of the standing committee claimed that criminialising marital rape had the potential to destroy the institution of marriage, the report said. “In India, for ages, the family system has evolved and it is moving forward…if the marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice,” it said.
The same month, when the anti-rape bill was being discussed in the Lok Sabha, Bharatiya Janata Party MP Sumitra Mahajan is reported to have said, “People these days get divorced over insignificant issues. Marital rape shouldn’t be made into a criminal offence…Things like these should be sorted out within the family or by counselling. There is no need for a law.”
The Supreme Court itself has backed this notion, said Sakrani. “The Court has ruled that a wife’s refusal to have sex with her husband amounts to cruelty and is a grounds for divorce,” she said.
