Marital rape: The State must protect women

Forcing a wife to have sex with her husband “can’t be equated with the act of ravishing by a stranger”, ruled one of the two judges of the Delhi high court, resulting in a split verdict on whether marital rape ought to be criminalised.

First filed in 2015, the question by a clutch of petitions before justices C Hari Shankar and Rajiv Shakdher was simple enough: Was an exception in rape law — sex with a wife, provided she is over 18 — constitutional or not.

For Shakdher, rape is rape, even when committed by a husband. Hari Shankar disagreed. A husband has a “legitimate expectation” of sex with his wife, regardless of her consent.

I’m not sure if the good judge spoke to the women who have sought justice in the recent past. In August 2021, the Chhattisgarh high court acquitted a man of marital rape after he inserted objects into his wife. That same month, a Maharashtra court granted anticipatory bail to a man who raped his wife with such violence that it left her paralysed. The judges were merely interpreting the law: A husband cannot be guilty of raping his wife.

The National Family Health Survey-5 (NFHS-5), released this past week, finds that when women are subject to sexual violence, husbands are the perpetrators in 82% of the cases. Yet 99.1% of sexual violence goes unreported when the perpetrator is the husband, found a 2018 analysis by Mint.

But the times are changing. On March 23, the Karnataka high court denied a husband protection from being prosecuted for raping his wife. Marriage was not a licence to unleash a “brutal beast”, the court ruled.

Other judgments also put marital rape on shaky ground. In August 2021, the Kerala high court said it was valid grounds for divorce. In 2017, the Supreme Court partially read down the exception, raising the age from 15 to 18.

The broad arguments against criminalising marital rape are: Wives already have legal remedies against cruelty, including the domestic violence law; marriage presumes a wife’s consent to sex; nobody wants the law in the bedroom; and it will weaponise the law against husbands.

But legal protection from domestic violence does not give a raped wife access to State support, including compensation, medical assistance and fast-track courts. Nor are wives the property of their husbands, presumed to have consented to sex-on-demand during their married lives. It is the duty of the State to protect women and children from harm within the confines of their homes and bedrooms.

Finally, the presumption that women will inevitably misuse the law, besides being a sexist trope, cannot mean the denial of a legal remedy for all. A law, when it comes, must ensure safeguards against misuse. “Women are being raped as we speak,” says lawyer Karuna Nundy who appeared for the petitioners. “It’s time to remove the patriarchal cloak that protects one class of rapists.”

Namita Bhandare writes on gender The views expressed are personal