The Delhi High Court is scheduled to pronounce on Wednesday its verdict on a batch of pleas seeking the criminalization of marital rape. A bench of Justices Rajiv Shakdher and C Hari Shankar had reserved its judgement on February 21 on the petitions seeking to strike down the omission granted to husbands under the Indian rape law after conducting NSE -5.52% hearings on the issue.
The petitioners had said that marital rape was the biggest form of sexual violence against women and the Delhi government had said that this act was already covered as a “crime of cruelty” under IPC. NGO, Men Welfare Trust (MWT), which is opposing the batch of petitions seeking criminalization of marital rape, had argued that sexual intercourse between a husband and wife cannot be treated at par with that in non-marital relationships as the issue of consent cannot be divorced from the context of a marriage. It had submitted that the Domestic Violence Act was specifically promulgated for recognizing spouse sexual violence.
However, the Centre told the court in January that it was “re-looking” at its earlier stand on the petitions as that was brought on record in the affidavit filed several years ago. The petitioners have challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands. Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.
When we asked the civil society members, they all believe that Marital rape can often occur as part of domestic violence and abuse.
Senior Adv Rohini Salian said, “The main ingredients of Rape as an offence consist of ‘against the Will of woman and without her consent’. When a woman is married to a man, she consents to live with him and takes the wows prescribed. She is treated with dignity as a ‘better half’. She retains her identity as a person. Marriage does not take physical and legal rights. If the law protects the right of a woman, it should be available to her as a single woman or married. If that is so, sexual intercourse against her consent and will would amount to using force and assault on the body and dignity of the woman hence she needs to be protected by Law. This is subject to proper evidence and proof in the Court of Law.”
Adv Mrinalini Deshmukh said, “Any forcible sex by the husband on the refusal or inability to give consent by wife amounts to marital rape one of instance should not be construed as marital rape Even today it’s a marital wrong amounting to mental cruelty and emotional violence and if proven results in compensation.”
Sanjay Bhide, Founder, TransAsian Chamber of Commerce & Industry said, “There must be punishment for marital rape. But, how can one gather evidence against it? If it is clubbed with domestic violence, one may be able to gather some evidence. It is a very tricky situation! With advanced education and misconception about equality, there is a growing number of false cases against men in urban areas! In rural areas, there is huge evidence of marital rape, clubbed with domestic violence. There are many known incidents of father-in-law and even brother-in-law raping a woman.”
Adv Abbas Kazmi said, “There is no such thing as marital rape. what if a wife pesters a husband for sex even if he is tired and not willing? she seduces him and coerced him into intercourse, will it amount to marital rape? Marriage is a social contract between two consenting adults. so, what is this consent? it is the consent for consummating the marriage. It is very easy for a wife to make allegations that marital rape has been committed if there is a strained relationship between the couple. If a punishment is imposed on such absurd allegations, then it will definitely result in divorce. I’m totally against marital rape.”
Adv Prashant Mali said, “In some cultures where the custom of bride price is common, the payment is seen as earning the man the right to control his wife sexually. Till the 20th century, under American and English law, the legal doctrine was one of coverture, which meant that upon marriage, a women’s legal rights were subsumed by those of her husband. But as of 2019, marital rape has been criminalised in 150 countries, I think now since IPC is getting amended shortly there is a need to have a section, that deals with Marital Rape but with safeguards for abuse.”
“Penetration with male genital”, forced “oral sex” without consent of wife and “age of wife” are taken into consideration to establish marital rape. While physical, emotional and sexual violence if genuine deserves punishment. The lingering process of prolonged court decisions and dates kills the scope of real justice and is a constant reminder to the victim till time heals and she learns to overcome the injury. There should be some law to punish family members who force such marriages and the woman should be allowed to make all these people parties who induced her marriage with such rapist,” said Adv Pratibha Bangera.
Journalist Sushmit Sinha said, “Marital rape does not just mean forced sex with a woman. Sometimes men are also its victims. Although we can say that women are more victims than men in sexual relations between husband and wife without desire. As far as calling it a crime, I believe that this issue can be legally removed with more social awareness. Both husband and wife have to understand that having sex without a partner’s will is wrong and it can affect their relationship in the long run.”
Padma Shri Dr Mukesh Batra, founder of Dr Batra chains said, “A marriage is more than a legal contract. It is based upon emotional trust and mutual respect. Marital rape is a violation of that bond. sex without mutual consent constitutes rape. Marriage does not sanctify it. It should be punished. A marriage is more than a legal contract. It is based upon emotional trust and mutual respect. Marital rape is a violation of that bond. sex without mutual consent constitutes rape. Marriage does not sanctify it. It should be punished.”
“Indeed, marital rape should be criminalized and punishable offence exactly like there is punishment for any other rape case. But the challenge in this is, that it is very difficult for a wife to prove marital rape, and therefore it is not only about passing a law, it is sensitizing the whole system and law to be more sympathetic toward the victim and understand that she is a victim of abuse. That change of mentality and attitude will actually make the law work for the women,” said Preeti Sharma Menon, AAP – National Executive Member.
Gaurav Kaul said, “Rape means having a physical relation against the wish and will of the partner which is heinous. The feeling of Marital rape by any of the partners is even more heinous as it would indicate that the partners don’t have any faith left in each other which means the relationship is just a hoax and any such act should be dealt with even more severe punishment.”
“Marital rape is not an Indian idea. The civilized society of spiritual India cannot do such a thing. Such types can only exist in a hedonistic nation. The petition was filed by a non-governmental organization affiliated with the Communist Party. The agenda of the communists is to establish an atheist state in India by corrupting Hindu culture. Assuming there is marital rape, there is domestic violence law for it. So, we don’t think there should be a separate punishment for marital rape. Our role is to ensure that no woman, whether married or virgin, is treated unfairly, but we sincerely hope that the Communists will not take advantage of her,” said Chetan Rajhans of Sanatan Sanstha.
Actress Vani Vasishta said, “A woman is forced to have sex when she is not willing to, during her menstruation, after a week of delivery, after a day of abortion; if denies then either get a divorce or tortured emotionally, physically and verbally. There should be punishment for such acts because husbands are being quoted as demi-God however there should be a term for such hypocrites Demi Semi Devil.”
Navvya Singh said, “The word “Marital Rape” doesn’t exist. It simply happens, when there is no love left in marriage. Sex without love or mutual willingness is called Marital rape. Nowadays, people even fall in love outside marriage after marriage. So, in such cases when his/her spouse tries to have sex; it’s simply considered as Marital rape.”
Actress Pooja Bedi said, “Non-consensual forced sex is marital rape. A marriage contract doesn’t give either partner the right to be sexually aggressive or forceful. No means no. Whether you’re single, dating or married.”
Choreographer Sandip Soparrkar, “Marriage is sacred, it is based on mutual love and respect for one another… it’s a promise to take care of each other… if sex is forced by either a man or a woman it means breaking that holy and divine promise. sex should always be consensual… if the act is done forcefully, it surely needs to be punished… does not matter the relationship one share. Marital rape is even worst kind of rape as the faith, the trust one has in a person is totally smashed and broken into pieces… it surely should be punished.”
Savio Rodrigues, BJP leader said, “No man has a right to force a woman to have sex even if the woman is a wife and the man is a husband. A ‘no’ means ‘no’. Being married does not give anyone the right to violate the personal space of another if at that point of time the person is not comfortable at doing any sexual act for whatever reason.”
Author Keval Domadia said, “The lack of respect and understanding results in marital rape. When one of the partners is not ‘in the mood’, that is probably because something is bothering them, it can always be worked out. However, our patriarchal culture dictates that a man can do whatever he likes with his wife but doesn’t teach that his wife is a human too, unless this fundamental cultural flaw is not corrected, this will, unfortunately, continue to rise. There should be a punishment of anything that makes a person do anything ‘against their will’ but, the challenge will be in proving that the plaintiff is a victim.”
Dr Deepak Chaturvedi, MD (Medicine) said, “One fact which needs no logic or explanation is that “for any sexual activity the will and (conscious) consent of other partner is of the utmost importance”. As very well explained in the movie “Pink”, “No means No”. This should apply to the sexual activity with the spouse too. Hence exception 2 in Section 375 needs to be evaluated. Very importantly, in this era when men and women are seen as equal in terms of position, power and decision making then there needs to be some modification in the definition of rape and it should not be restricted to only “Man to woman”. In reality and in many situations, it can be another way “Woman to Man” too.”
Actor Bharat Dabholkar said, “In law rape is rape. It’s forced Intercourse without the consent of the woman. Marital or otherwise.”
Music director Mahima Bharadwaj said, “It’s difficult to implement the law. How can one prove that it was rape or a false accusation when it happens in the privacy of someone’s bedroom? Where will you draw line between wooing your wife to have sex and raping her? What if one partner uses this as a false accusation during a fight or a divorce.”
Zenobia Khodaiji said, “The patriarchal “Pati Parmeshwar” culture. Most of the women themselves in India don’t want to walk out of marriages. Either they are not financially independent or because of social stigma around divorce. They were just taught to put up with the abuse and to keep their husbands happy no matter what. (Female-on-male rape is not even talked about).