Sexual assault by husband can take form of rape, says Supreme Court. Understanding why this is significant

Forceful pregnancy of a married woman can be treated as ‘marital rape’, the Supreme Court ruled on Thursday. While the order recognises marital rape purely within the ambit of abortion, it is significant for women in India, where a sexual assault by a husband is not criminalised

FP Explainers September 29, 2022 13:15:38 IST
Sexual assault by husband can take form of rape, says Supreme Court. Understanding why this is significant

Representational image. AFP

In the first legal recognition of marital rape in India by the Supreme Court, it said that sexual assault by a husband can take the form of rape.

The apex court’s ruling came as it was interpreting the Medical Termination of Pregnancy (MTP) Act and the related rules visa-vis the discrimination between married and unmarried women to allow abortion until 24 weeks of pregnancy.

“All women are entitled to safe and legal abortion,” Justice DY Chandrachud said while delivering the big order on terminating pregnancies.

In a significant ruling, he also added, “Under the MTP Act, rapes shall also include marital rape… Sexual assault by husbands can take a form of rape.”

The judgement recognises marital rape though purely within the ambit of abortion. Yet it’s a groundbreaking ruling in a country where marital rape is not criminalised.

What is marital rape?

The term marital rape (also referred to as ‘spousal rape’) refers to unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent. The words ‘unwanted intercourse’ refers to all sorts of penetration (whether anal, vaginal or oral) perpetrated against her will or without her consent.

What is the status of marital rape in India?

The definition of rape as per Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over 15 years of age from Section 375’s definition of “rape” and thus immunises such acts from prosecution.

As per law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations.

India is one of 36 countries including Pakistan, Afghanistan, Bangladesh, Egypt, Algeria and Botswana that have not criminalised marital rape.

Also read: Why it is time for India to join 150 countries in criminalising marital rape

Interestingly, the JS Verma committee set up in the aftermath of nationwide protests over the rape in December 2013 recommended that marital rape be criminalised.

The issue gained traction in 2016 when then Woman and Child Development Minister Maneka Gandhi stated in the Rajya Sabha that the concept of marital rape could not be applied to India.

In her written reply, she said: “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament.”

What was more surprising was that her 2016 response on marital rape was a complete contradiction to her own views on the same matter in 2015.

In June of that year, in an interview with IANS, she condemned marital rape as unacceptable and claimed that such a form of rape is “not always about a man’s need for sex, it is also about his need for power and subjugation”. Such cases, she had said, needed to be taken with seriousness, because “violence against women shouldn’t be limited to violence by strangers”.

What have courts said in the past?

In May, the Delhi High Court delivered a 1:1 split verdict on the issue of criminalisation of marital rape and said that the matter will have to be considered by the Supreme court of India.

The two-judge bench of justices Rajiv Shakdher and C Harishanker gave dissenting opinions on the issue of whether the exception granted to the sexual acts done by a husband on his wife can be considered valid under the Constitution, according to a report by India Today.

In March, the Karnataka High Court delivered a judgment, saying that “rape is a rape”, be it performed by a man the “husband” on the woman “wife”.

The statement came as the court was hearing a case filed by a woman in which she alleged that her husband had treated her like a sex slave right from the start of their marriage. Describing her husband as “inhuman”, she alleged that she had been forced to have unnatural sex, even in front of her daughter, by him.

While allowing the framing of rape charges against the husband, the court, as per a report in NDTV said, “The institution of marriage does not confer, cannot confer and in my considered view, should not be construed to confer, any special male privilege or a licence for unleashing of a brutal beast. If it is punishable to a man, it should be punishable to a man albeit, the man being a husband.”

In its order, the Karnataka High Court said, “A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape. Such sexual assault by a husband on his wife will have grave consequences on the mental sheet of the wife, it has both psychological and physiological impact on her. Such acts of husbands scar the soul of the wives. It is, therefore, imperative for the law makers to now ‘hear the voices of silence’.”

However, there have been instances of the ruling not going in favour of women. In March, the Bombay High Court quashed an FIR against a man accused of raping a woman after they got married.

In August 2021, a sessions court in Mumbai ruled that there was nothing illegal about a husband having sexual intercourse with his wife against her wish.

What have activists said?

Following the Delhi HC verdict in May, advocate Karuna Nundy said, “Thousands of Indian women are being raped as we speak, and the exception to section 375 says that married rapists have a conjugal right to penile vaginal rape and also anal rape, gangrape. The marital rape litigation is non-adversarial, between citizens and their government. This fight is by people against misogyny. Men’s organisations that stand for equal relationships with their wives, and wish for a joyful yes, have joined this fight with the Petitioners.”

Nundy argued for the petitioners before the division bench of the Delhi HC and will fight the case in Supreme Court. The fierce advocate was named by TIME magazine as among the 100 Most Influential People of 2022 for litigating a challenge to India’s rape law that contains a legal exemption for marital rape among other rights for women.

Gender researcher Kota Neelima, speaking on marital rape, was quoted as saying to BBC, “It is a clear violation of women’s rights, and the immunity it provides to men is unnatural and the main reason behind the growing number of court cases.

“India has a facade of being very modern, but scratch the surface and you see the real face. The woman remains the property of her husband. Rape is criminalised in India not because a woman’s violated, but because she’s the property of another man.”

Also read: Marital rape: Legitimised by law, protected by courts

Vrinda Grover, activist-lawyer, has said that it is the consent of a woman which matters and not her relationship with the perpetrator. “Indian society, like any other society, is witnessing marital rapes and it needs to be made punishable. In such cases, consent of a woman is of utmost importance and relation between a perpetrator and the woman becomes irrelevant,” she told Economic Times.

Trisha Shetty, who works towards achieving gender equality, in a column for The Print had written, “The definition of rape in India is still looked at through the lens of a woman’s marital status. If you oppose criminalising marital rape, you are a rape apologist.”

Senior advocate Colin Gonsalves has also argued that marital rape is the biggest form of sexual violence against women which is never reported, analysed or studied.

Which countries criminalise marital rape?

In 1932, Poland was the first to make a law explicitly making it a criminal offence.

Since the 1980s, many countries have legislatively abolished marital rape immunity. These include South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana, and Israel.

In the US, between 1993 and the 1970s, all 50 states made marital rape a crime. The Court of Appeals of New York struck down the marital exemption from their codes in 1984.

In 2002, Nepal also got rid of the marital rape exception after its Supreme Court held that it went against the constitutional right of equal protection and the right to privacy.

With inputs from agencies

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