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The Big Picture – Marital Rape: Should it be punished?

The Big Picture – Marital Rape: Should it be punished?

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Summary:

In recent years sexual violence has been a matter of serious debate and controversy everywhere in the world including India. The December 2012 Delhi rape incident had led to an uproar and later changes by bringing in harsher laws and strainer punishments to perpetrators of rape. However, one aspect of this problem, marital rape, remained untouched. The recommendations of the Verma committee to criminalize rape, was not accepted by the government then. In fact, a parliamentary committee also opposed the Verma commission proposal saying that entire family system will be brought under great stress if the Marital Rape is brought under the law. Recently, the government also reiterated the position adding concept of marital rape as understood internationally cannot be suitably applied in the Indian context due to various factors. This has revived the debate about whether the marital rape should be criminalized and made a punishable offence or should the status quo continue.

Most of the rapes go unreported. According to the latest National Family Health Survey, husbands commit the majority of the acts of sexual violence in India. Out of the total number of rapes reported to NFHS, 97.7% were committed by spouses of the victim. Experts say that sexual consent is the right of every woman – married or unmarried – as much as of men, and nonconsensual sex should be treated exactly the same, regardless of the relationship of the perpetrator to the victim. The absence of a law to safeguard the same is a human right violation and unjust towards women. Marital rape is also considered as the violation of Fundamental Right guaranteed under Article 14 of the Indian constitution which guarantees the equal protection of laws to all persons. By depriving married women of an effective penal remedy against forced sexual intercourse, it violates their right to privacy and bodily integrity, aspects of the right to life and personal liberty under Article 21. The United Nations has also recommended India make it criminal for a man to rape his wife.

Proponents of the marital rape exception, however, argue that it is essential to preserve the integrity of marriage, which is a crucial social institution. They also argue that marital privacy requires that the State refrain from interfering with whatever takes place within the home. They further add that the home is a private domain, a retreat and a shelter from the world, and the entire purpose of securing a right to privacy would be defeated if sexual intercourse within marriage could be made the subject of legal proceedings.

The Delhi High Court in February 2015 refused to entertain a PIL challenging a provision in the penal law which does not consider rape as the sexual intercourse of a man with his wife who is a minor noting that a similar matter has been junked by the apex court. Thus judicial reforms are also necessary to deal effectively with such matters. It is also being said that marital privacy – which justifies laws such as the marital rape exception – is a fundamental denial of society’s commitment to treating all persons with equal concern and respect. Many countries have made it a crime for a husband to force his wife to have sex in recent years. Malaysia changed its laws to that effect in 2007; Turkey in 2005; and Bolivia in 2013. The United States began criminalizing marital rape in 1970s and most European countries in the 1990s.