New Delhi, May 11
India remains among some 30 countries where marital rape is not criminalized as Delhi High Court’s split verdict on the issue on Wednesday gave little cause for celebration for those fighting against the clause. alleged discrimination under Section 375 of the Indian Penal Code.
According to a UN Women report, most of these 34 countries were developing countries, including Pakistan, China, Bangladesh, Myanmar, Sri Lanka, Haiti, Laos, Mali, Senegal, Tajikistan and Botswana.
Thirty-two percent of women in India who have ever been married have experienced physical, sexual or emotional domestic violence, according to the latest fifth round of the National Family Health Survey (NHFS-5).
It further revealed that 25% of married women aged 18-49 who have experienced physical or sexual intimate partner violence report having suffered physical injuries, including 7% who suffered eye injuries, sprains, dislocations or injuries. burns and 6% who had deep wounds, broken bones, broken teeth or any other serious injury.
In the case of marital rape, India continues to adhere to archaic colonial law that involuntary sexual contact between husband and wife is not recognized as a criminal offence.
One of the two exceptions in Section 375 of the Indian Penal Code (ICC), the provision that defines all forms of sexual assault involving non-consensual intercourse with a woman as rape, states that “the sexual intercourse of ‘a man with his wife, the wife not being less than fifteen years old, is not rape’.
Activists have alleged that this exception grants men immunity from a punishable offense of rape when committed in a prenuptial agreement and violates the Constitution.
The Delhi High Court delivered a split verdict on Wednesday, with one justice favoring striking down the provision, and the other ruling it was not unconstitutional.
The Division Bench, however, allowed the parties to appeal to the Supreme Court.
In 2017, the Supreme Court read the marital rape exception, but only to change the age, and ruled that it should read “the woman not less than eighteen years old” – not 15 – ensuring that the IPC complied with the age of consent, which is 18.
The same year, the Centre, in its affidavit, had opposed the pleas, saying that marital rape could not be criminalized because it could become a phenomenon that could destabilize the institution of marriage and an easy tool for harass husbands.
A group of petitions had challenged the very constitutionality of the marital rape exception under article 375 CPI (rape).
Several experts, NGOs and activists have argued against the exception clause for flagrant violation of the rights of married women under article 14 (right to equality) and article 21 (right to life) of the Constitution.
Even the Justice Verma Committee, formed in the wake of nationwide protests following the 2012 Delhi gang rape case, recommended in its 2013 report the removal of the exception clause from section 375 of the ICC which decriminalizes marital rape.
“The marital rape exemption stems from a long outdated notion of marriage that viewed wives as nothing more than the property of their husbands.
“Under the common law of coverage, a wife was deemed to have consented at the time of marriage to have sexual relations with her husband at her pleasure. Moreover, this consent could not be revoked,” the committee said.
However, the recommendation was not part of the Criminal Law (Amendment) Act passed in 2013, and a parliamentary home affairs panel formed to review the ordinance before the law was passed said: “The whole of the family system will be under great pressure. “Should marital rape be criminalized?