Marital Rape: The Case of Wife's Consent, If She Can't Say 'No' Can She Say 'Yes'?

It’s ironic that in a country where wives are called ‘Ardhanginis’ or better halves, without whom no religious rites can be performed with perfection by a man, they are anything but that. According to Hindu scriptures, a wife’s participation is vital in any religious rite. They are to be given not just importance but an equal position. But in reality, do Indian women enjoy equal rights as a man is up for comments.

In India, women have always been considered inferior to men, courtesy the patriarchal structure of society. Women in our country have been subjected to atrocities for ages, rape, domestic violence, sexual harassment, trafficking and forced prostitution are just a small part of a never-ending list of crimes against them.

Currently, the country is debating a form of rape – Marital Rape. Marital Rape also known as Spousal Rape or Inmate Partner Rape is a rape committed by one spouse against the other. In maximum cases, the woman has not given consent for such intercourse.

Marital Rape Delhi High Court Verdict: What constitutes rape?

Section 375 of the Indian Penal Code (IPC) categorises acts of penetration sans informed consent as rape. However, it categorically mentions that sexual intercourse with one’s wife who is over the age of 15 will not constitute the offence of rape. The statutory age of consent was raised from 15 to 18 by the Criminal Amendment Act of 2013.

But why is Marital Rape not considered rape?

Well, according to Hindu beliefs, a wife cannot deny her husband sex. It is also observed that denial of sexual intercourse is a common ground for divorce. The Karnataka High Court held that denial of sex is a violation of sections of the Hindu Marriage Act and hence a good enough reason to seek divorce.

To quote the judgment, “The husband can't be made to suffer for no fault of his and be deprived of his natural urge to enjoy sexual happiness if the wife is unwilling to share the bed and discharge her duties.”

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Why sex without the consent of the wife should be considered rape?

Being wedded does not permit a man to forcefully have sex with his wife. The right to have sexual intercourse must be consensual and not an obligation on the part of his wife. But even then today the legal system in India does not recognise Marital Rape as a crime. Although on August 5, 2021, the Kerala High Court upheld Marital Rape as a good ground to claim divorce.

The National Family Health Survey in 2005-2006, found that among the 80,000 women they had interviewed, 93 percent said that they had been sexually abused by their current or former husbands. Then, the National Family Health Survey of 2015-16 showed no improvement as the data estimates 99.1 percent of sexual assault cases going unreported. A reference to the National Crime Records Bureau’s statistics would present that less than one percent of such incidents were reported.

Who were the petitioners?

The four petitions were filed in Delhi High Court by NGOs RIT Foundation in 2015, the All India Democratic Women's Association (AIDWA) in 2017, Khushboo Saifi, a marital rape survivor, in 2017, and one by a man accused of rape by his wife.

At least two petitions by men's rights organisations namely Men Welfare Trust (MWT) and Hridey were also filed before the Delhi High Court against the criminalisation of marital rape. The grounds are allegations of false cases, the potential for misuse, and damage to marital relationships and family.

The hearing in the RIT Foundation’s case began in 2015, with the Delhi High Court issuing a notice to the Centre and Delhi government. But in 2016, the Centre filed an affidavit taking the stand that marital rape cannot be criminalised as it would have a negative impact on Indian society.

So, what happened now?

The Delhi High Court, which heard a batch of petitions seeking the criminalisation of marital rape, pronounced a split verdict on Wednesday, May 11. The petitions were challenging the exception to the rape law under the Indian Penal Code (IPC). So, for now, the provision that shields husbands from a rape charge by wives will remain in the IPC. But, they have allowed the parties to approach the Supreme Court for a final say.

The two judges penned separate lengthy opinions. They traced the history of the colonial era provision, the reason for its continuance and why it must go (Justice Rajeev Shakdher) or remain (Justice C Hari Shankar). Shakdher, who headed the bench, favoured striking down the marital rape exception for being “unconstitutional” and for being “steeped in patriarchy and misogyny”.

Why the fight must carry on?

India is one of the 34 countries that has not criminalised Marital Rape. Isn’t that astounding?

The fight must carry on because the effects of Marital Rape is more severe and has long-lasting consequences for the woman because of the fact that her rapist is none other than her husband with whom she had expected to spend a lifetime.

The effects can be categorised into two sections. The physical effects include injuries to private organs, bruises, torn muscles, lacerations, fatigue, fractures, etc. Women who are subjected to physical violence, as well as rape, suffer from other complications like blackened eyes, broken bones, and wounds inflicted by any sort of weapon, during sexual violence. Wives also suffer miscarriages, infections and infertility. The psychological effects include shock, fear, stress, suicidal tendencies, etc.

Matter of consent

A sexual or intimate relationship is a matter of consent. Period. No matter whether the partners are legally wedded or not. No relationship can last if both partners are not willing. A forceful act can never be justified even if he is the spouse.

Cannot say ‘Yes’ either

I would like to end as Karuna Nandy, Lawyer for Petitioner said, “In 2022, what we must ask ourselves is – in taking away a woman’s right to say ‘no’, we’re also taking away her ability to say a joyful ‘yes’ to her husband.”

The views expressed are the author's own.