Expert Article: Delhi HC Hearing Of Marital Rape PIL Stalled By Centre - What The Law Says For Women

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If you are a regular on the micro-blogging site Twitter, you are sure to have seen posts with the hashtags #MarriageStrike or #MaritalStrike, and if you're a somewhat curious person, you must have been wondering what marriage strike means anyway. To put it in brief, posts with these hashtags were in response to court hearings in January 2022 on a public interest litigation (PIL) seeking the removal of the marital rape exception from Indian criminal law.

Boldsky spoke to Advocate Pompey Bose for a comment on the matter of marital rape law in India. But first, let's take a look the what the argument is all about.

Indian Law On Marital Rape And The Need For Change

In recent years, India has overhauled its sexual assault laws, but has excluded a large section of women from legal protection for rape - these women are married women who need protection from being forced into sex by their spouses. In many countries, particularly the west, marital rape is a criminal offence. But unfortunately not so in many Asian countries, including India, Pakistan, Afghanistan and China. These Asian countries are among the 30 odd countries in the world that do not criminalize marital rape. The Indian rape law excludes acts of forceful sex between a husband and wife.

What Changed In January 2022?

Judges in the Delhi High Court began regular hearings on a number of legal challenges, asking for this exception to be struck down. The petitioners argue that the exclusion of married women is not only unjust but also obsolete in modern times; it sends out a poor social message to India's young women.

Outrage And Protest

But where there is an argument, there will be a counterargument, too, and this is where the Twitter hashtags come into the picture. Proponents of the hashtag protest say that such a change to Indian rape law would render men at risk of facing frivolous criminal charges, making it dangerous to get married at all.

This protest against the possible striking off of the exception is led by the Save Indian Family Foundation, a men's rights group. Its members say that domestic violence laws are already being misused in India against husbands and their families. They argue that if the marital rape exception was removed, innocent husbands would become even more vulnerable to false cases. They are of the opinion that this change in the law will destroy the "fabric of the Indian family".

Therefore, the protesters want to propose an alternative family structure without wives. One is compelled to wonder whether they are suggesting that the foundation of the Indian family is laid on the sexual exploitation of wives and whether they are ironically pushing the cause of feminism by promising to cook and clean by themselves!

Status Of The Possible Ruling - Opposing Viewpoints

Creating a new offence requires a change in the law that must go through Parliament, but in this case, many lawyers believe that this is just a matter of striking out the clause that details the exception. They say that the exception sends out the message to young women that their consent is irrelevant if they are married. It is unfair to them in that the law protects unmarried women while ignoring married women.

What The Centre Says

While the Court has been deliberating over the challenges and seeking opinions from various civil rights groups, the Centre conveyed its opinion to the Delhi High Court in a written submission.

In the submission, the government has put forward several concerns in its five arguments, as follows:

- First, it conveyed that marital rape is sufficiently covered under sexual abuse under the definition of domestic violence. Moreover, acts of unnatural sex in a marriage are covered under Section 377 of the Indian Penal Code (IPC).

- Second, the Centre is concerned about the lack of means to verify when consent stands withdrawn by the wife. It has maintained that it is concerned about the misuse of Section 498 of the IPC related to dowry harassment and that "gross misuse of the offence of marital rape by the wife cannot be ruled out."

- Third, it has pointed out that it is necessary to define "what constitutes marital rape and what would not constitute marital rape."

- Fourth, the Centre has argued that while the testimony of the prosecutrix is sufficient to convict the accused under Section 376 of IPC, corroborative evidence such as physical injuries may be rendered useless in allegations of marital rape. "It will be difficult to determine as to when the consent was withdrawn by the married woman. The cost of the circumstantial and corroborative evidence will become futile in case of marital rape."

- Fifth, the Centre underlined that "deletion of exception 2 of Section 375 of IPC would make marital rape a cognizable, non-bailable, and non-compoundable offence. This would stop all the chances of a settlement between the husband and wife, which is possible under Section 498A of the IPC."
To sum up, the government argued that India should move cautiously in its consideration of criminalizing marital rape and not follow western countries blindly.

The Court has repeatedly asked when it can expect to hear the Centre's stand as the government is yet to argue in court. Solicitor General Tushar Mehta had said that the Centre is considering a "constructive approach" and is hearing suggestions from different stakeholders. However, the bench made it clear that it would continue hearing other stakeholders till the Centre opens its arguments.

However, on February 4, the Centre urged the Delhi High Court to halt hearings on marital rape, putting an end to the argument altogether, for now. The Centre needs time. It said that "the issue has a major social impact and meaningful consultative process with various stakeholders and state governments must be done as it cannot be decided merely upon the argument of few lawyers."

Kerala High Court Ruling - A Positive Sign

Boldsky approached Advocate Pompey Bose for comment. Ms Bose directed us to landmark judgement by the High Court of Kerala in August 2021, which went against the ruling of a family court in Ernakulum. It throws light on the legal status of marital rape in India and recognizes marital rape as ground for divorce.

The High Court of Kerala ruling says, "A husband's licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty. Marital rape is alien to our penal jurisprudence...Marital rape occurs when husband is under notion that body of his wife owe [sic] to him...In modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with respect to her body or with reference to individual status."

"Treating wife's body as something owing [sic] to husband and committing sexual act against her will is nothing but marital rape...This essentially would constitute cruelty. Merely for the reason that the law does not recognize marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce."

This makes it clear that while marital rape in India is not a criminal offence, it can still be ground for divorce. The current PIL aims to change this. It is now to be seen which way the Delhi High Court and the Centre take this debate.

Illustration by Freepik.