The Delhi High Court heard petitions seeking declaration of Section 375 (offence of rape) of the IPC as unconstitutional on the ground that it discriminated against married women being sexually assaulted by their husbands.

The HC had earlier asked the Centre to clear its stand on petitions seeking to criminalise marital rape.

In an affidavit, the central government said that there is a fear that marital rape could become a tool of harassment for women just like Section 498A (Anti-Dowry Harassment Law).

The centre said that the law could be used to harass husbands and deleting exception 2 of Section 375 of the Indian Penal Code would not serve any purpose since there would be no way to verify allegations of rape made by a wife against her own husband.

The Delhi High Court is currently hearing a challenge to exception 2 to Section 375, which says that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape. The petition in this case has been filed by an NGO, RIT Foundation, along with the All India Democratic Women’s Association (AIDWA) and a victim of marital rape.

“What may appear to be marital rape to an individual wife, may not appear so to others”.

That’s what the Union of India said, in a written submission, to the Delhi High Court, which is currently hearing a petition challenging Exception 2 to Section 375 and Section 376B of the IPC because it excludes marital rape as a criminal offence.

The submission, submitted by Monika Arora, the Central Government Standing Counsel, throws up a barrage of absurd reasoning.

Among others, the Union of India’s written submissions supporting Exception 2 imply that a wife always gives consent to sexual relations in a marriage and argues that a wife needs the assent of everyone in society to give legitimacy to her claim of being raped in marriage.

As of 2013, an estimated 27,515,391 women aged fifteen to forty-nine years experience sexual violence in India. Of these, 2,522,817 of the women affected were aged fifteen to nineteen years old. This age group only accounts for 9% of the female population.However, this age group experiences 24% of the rape cases in India. There has been a steady increase in rape cases in India from 2001 to 2012. The increase in rape cases for women aged fourteen to fifty has increased 54% in that time. It is believed that rape reports are low due to marital rape being legal in India.  It is estimated that only 1% of rapes are actually reported.

It is believed that women in India are 40% more likely to experience rape from their husband than by a stranger. It is also estimated that 10% of women in India experience sexual violence. 

As told to the media, Asha (name changed),42 has spent 24 years of her life dreading the next assault. Sitting at a counseling centre in a Mumbai suburb, she vividly recalls each episode of violence: of being slapped, beaten with a stick, sexually abused in private and verbally abused in public, being abandoned, and later, treated like a slave.

While marital rape gets documented in hospitals, cases are rarely registered, since it is excluded from the India Penal Code’s (IPC) definition of rape, says an analysis by Dilaasa, a counseling centre based out of K.B. Bhabha Hospital in Bandra.

In 2015, a woman came forward about having been raped and assaulted by her husband. She was hospitalized for her injuries, however, her husband was never prosecuted. The woman took the issue in the form of a petition to Supreme Court. Her petition was dismissed, the court saying that the law couldn’t be changed on the basis of one person’s experience.

In a High court in India in 2012, it was ruled that if a woman denied her husband sex, it was a form of abuse. 

The ruling was later upheld by India’s Supreme Court as well, saying that being denied sex was a valid reason for divorce.It is seen this way because by denying her husband sex, she is also denying him happiness.

I recall one such incident where I saw a man beating his wife very badly on the road when she was helplessly crying to be saved. Though I called the police but what instantly came to my mind was, a man who is shamelessly beating his wife in broad daylight in public area, what could he do to her in the privacy of their home when no one is around.

This is just one incidence when there are many such stories hidden in various parts of our country which don’t come out in open simply because marital rape is not considered a crime. Just because a woman is married doesn’t give husband the liberty to have sexual relations with her without her consent. What we are denying here are human rights. Marriage does not mean validation for raping your wife. It means much more and has sacramental essence to it and should not be allowed to be used as a veil for committing such hideous acts of sexual crime.

Societies such as India that condemn and penalise sex outside of marriage often force men into marital relationships only for free access to physical consummation, which puts women under incredible sexual threat. A few years ago, newspapers carried the story of a 26-year-old woman who returned from a Bangkok honeymoon with serious injuries after her husband forced violent sex on her. This is far more common than one would like to think, and there are more than one woman who has endured similar sexual abuse in marriage with no legal recourse.

While marital rape gets documented in hospitals, cases are rarely registered, since it is excluded from the India Penal Code’s (IPC) definition of rape, says an analysis by Dilaasa, a counselling centre based out of K.B. Bhabha Hospital in Bandra.

One of the argument put forward by the government is that criminalizing marital rape may harm the very institution of marriage – citing misuse of Section 498(A) of the IPC.

There are various instance where women has been raped in a consensual relationship. Every provision of law has been misused at one point of time or another. But there is system of check and balance. The centre has ignored the value of evidences in making out the actual case. The question is why marriage be any different while evaluating whether rape is a criminal offence?

When society makes theft or murder a punishable offence, it does so not because everyone is a potential thief or murderer but to protect everyone from the few thieves and murderers. Are these laws misused? Of course they are, all of them, and with sickening frequency. But nobody is asking for them to be thrown out, are they?

India has it own set of problems like lack of education, financial position of women is not at par with the male members of the family, mindset of the society, poverty, vast diversity etc.  But such issues cannot be kept as hinderance to recognize such a heinous crime like that of marital rape.

In the background of such issues, it is true that criminalizing marital rape will not put an end to the crime but at least it will give recognition to such crimes which is a major step given the situation where no such crime makes it to the police station.