SC Verdict On Same-Sex Marriage Sparks Debate Around Marital Rape

In a landmark statement today, the  Supreme Court of India while hearing the appeal of legalising same-sex marriages emphasised that the State cannot completely withdraw its interference from the domestic space as it will leave the vulnerable party unprotected. 

CJI DY Chandrachud : Withdrawal of the State from the domestic space leaves the vulnerable party unprotected. Thus all intimate activities within private space cannot be said to be beyond State's scrutiny.

— Live Law (@LiveLawIndia) October 17, 2023

The first thing that sparked in my mind after listening to is, marital rape. If the court has the right to interfere in private matters and if the wife is being raped under the umbrella of marriage, isn't this leaving the "vulnerable" unprotected?

What Is Marital Rape?

Marital rape refers to the act of one spouse forcing sexual intercourse upon the other spouse without their consent. It is a form of sexual violence and abuse that occurs within a marital relationship or intimate partnership. 

Historically, it was not considered a crime in many societies, as marriage was often seen as "implying consent" to sexual activity. However, over time, many legal systems and societies have recognized that consent is required for any sexual activity, even within a marriage.

Despite being recognized as a grave violation of human rights by international conventions, India has yet to criminalize this practice. The Indian Penal Code (IPC) provides an exception in Section 375, which states that sexual intercourse by a man with his wife, who is not under 18 years of age, is not rape. This legal loophole has raised significant concerns regarding the protection and rights of women in marital relationships.

Court Orders Till Now

1. Delhi High Court's Split Judgement

In May 2022, there was a divided ruling by the Delhi High Court regarding the criminalisation of marital rape in the nation. Justice Rajiv Shakdher declared the current law as unconstitutional, asserting that the fundamental women's rights to life and freedom are rooted in their ability to revoke consent.

Meanwhile, Justice C. Harishanker dismissed the request to make marital rape a criminal offence, emphasising that the responsibility for changing the law should rest with the legislature, the argument presented by CJI Chandrachud during today's proceeding of same-sex marriage. 

2. Karnataka High Court Verdict

In December last year, Karnataka High Court passed a significant ruling in a marital rape case. The court declined the husband's request to dismiss the pending rape charges filed against him by his wife under Section 376 of the Indian Penal Code.

Reportedly, the Karnataka High Court stated, "The institution of marriage does not bestow, cannot bestow, and, should not bestow any particular male privilege or a permit for the release of a savage aggressor."

It ruled that if rape by any other man is punishable, so should it be for a husband.

Time SC Notices Its Own Statements?

Even though, today's Supreme Court's statement reaffirms the significance of upholding the rights and dignity of individuals within the private space, it fails to acknowledge the right of a woman, especially as a wife.

The concept of vulnerability, as addressed by the Supreme Court, is central to the debate on marital rape. Many remain trapped in abusive marriages due to social stigma, financial dependence, and a lack of legal recourse. Marital rape often goes unreported, and survivors suffer silently in the absence of legal support.

The statement underscores the need for a balance between individual privacy and the responsibility of the State to safeguard its citizens from harm and injustice. But where is the safety of a wife? Is she being given justice when she walks into the court shouting to people that she was raped by her own husband?

While rape, in general, has devastating physical and psychological consequences for survivors, marital rape also comes with the normalization of such stereotypes within marriages, guilting the victim into believing that it was her fault.

The Need for Legal Reform

The lack of criminalization of marital rape in India is a matter of grave concern. The nation has made significant strides in addressing gender-based violence and promoting gender equality, but this legal gap remains a dark stain on India's human rights record.

The Supreme Court's recognition of the State's responsibility to protect individuals from harm, even within the private sphere, should serve as a catalyst for legislative change.

The legal void surrounding this issue is a pressing concern that cannot be ignored. It is essential for India to align its legal framework with international standards and prioritize the rights and dignity of its citizens, irrespective of their marital status. The time has come for legislative reform to criminalize marital rape, providing justice and protection to those who have long been denied it.

Suggested Reading: SC Verdict: No Recognition For Same-Sex Marriage, It's For Legislature To Do So