Violence of Any Form is Unacceptable. India Must Criminalise Marital Rape

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India's legal framework regarding marital rape is dictated by the Indian Penal Code (IPC) of 1860, which operates under the assumption that a wife's consent is irrevocably granted upon marriage. While only a few nations, including Ghana, India, Singapore, and Nigeria, explicitly allow marital rape, more than 100 countries have made it a criminal offence, highlighting that such legislation fosters mutual respect and consent rather than detracting from the institution of marriage.

As a former British colony, India adopted a common law system shaped by Sir Matthew Hale’s ‘Implied Consent Theory’. However, unlike the UK, which abolished this doctrine in 1991, India retains it, also classifying sexual acts as non-rape if the girl is married and between the ages of 15 and 18, a practice that is both archaic and unacceptable in a civilised society.

The criminalisation of marital rape is crucial for the protection of human rights and individual dignity, as every individual deserves bodily autonomy and freedom from violence, irrespective of their marital status.

The existing legal structures in India often fail to recognise the rights of married women, frequently dismissing sexual violence within marriage under the pretext of cultural norms. Victims endure significant physical and psychological harm, including injuries, unwanted pregnancies, and mental health issues. Acknowledging and criminalising marital rape would provide victims with much-needed legal recourse and improved access to support services. 

The National Family Health Surveys (NFHS) highlight alarming societal perceptions regarding domestic violence in India. In the 2005-06 survey, 50 percent of men believed that wife-beating could be justified under certain circumstances; this percentage fell to 42 percent in 2015-16 but increased again to 44 percent in 2019-21. Furthermore, 32 percent of ever-married women reported experiencing various forms of violence—physical, sexual, or emotional—at the hands of their husbands. Research shows that intimate partners account for 38 percent to 50 percent of all female homicides, with 84 percent of women who faced domestic violence identifying their current husband as the abuser.

Critics of criminalising marital rape contend that it may undermine the institution of marriage and lead to false accusations. Nevertheless, appropriate legal protections can mitigate the risk of misuse while safeguarding victims and ensuring justice. While some argue that marital rape is challenging to prove, this perspective too is misleading. Rape cases often depend on circumstantial evidence and assaults by acquaintances or partners can be just as difficult to substantiate as those by strangers.

Marital rape usually indicates a pattern of abuse rather than a singular event, often supported by forensic evidence, as physical violence frequently accompanies forced sexual acts. Even if medical examinations yield inconclusive results, other forms of evidence, such as witness testimonies and recordings of the perpetrator's admissions, can still support the case for criminalisation.

The current Domestic Violence Act acknowledges sexual violence against wives, suggesting that a similar legal framework could effectively address spousal rape. The Justice J S Verma Committee, in response to the 2012 gang rape of Jyoti Singh, recommended the criminalisation of marital rape, emphasising that the dynamics of victim and perpetrator should not be a factor when assessing a case of rape or sexual assault.

Moreover, a low conviction rate does not inherently imply the misuse of the law; it may stem from insufficient investigations, the principle of presumption of innocence, or systemic biases that obstruct women's access to justice.

The prevalence of violence against women in India is frequently underestimated in national crime statistics, with research indicating that the National Crime Records Bureau (NCRB) figures for crimes against women are significantly underreported. For instance, in 2005-06, over 40 percent of married women reported experiencing domestic violence, yet fewer than one percent of these cases were reported under Section 498A.  

Vimochana, a women's rights organisation, conducted a study in Bangalore from 2012 to 2015 to challenge misleading statistics and misconceptions surrounding Section 498A and the Dowry Prohibition Act, 1961. Their research provided important insights into arrest rates and instances of suicide among married men.

Contrary to assertions that the non-bailable nature of Section 498A leads to arbitrary arrests, over 70 percent of those accused were able to secure anticipatory bail, with only about 24 percent actually arrested. The study also highlighted that police often facilitate the process of obtaining anticipatory bail, leaving victims unaware of their rights. Further, the data indicates that suicide rates among married women surpass those of men, challenging prevailing narratives about dowry-related issues.

Misuse is often misunderstood in legal contexts, where women seeking justice frequently encounter stigma and accusations regarding their motives. This situation exemplifies victim-blaming, pressuring 'good' women to conform to societal expectations and refrain from pursuing legal avenues.

Judicial outcomes must transcend prior judgments and public sentiment, necessitating a comprehensive analysis of each case backed by expert data to ensure equitable law application. Educated women with high aspirations are less likely to misuse Section 498A; instead, they tend to pursue divorce when faced with unsatisfactory marriages. Moreover, the cultural understanding of marriage often lacks clarity regarding consent.

Some women may take advantage of legal protections, but men also perpetrate similar abuses. No law is immune to manipulation through influence and financial power, leading to compromised investigations and prolonged court processes that hinder justice. This highlights the urgent need for reform and robust enforcement, rather than stalling the introduction of new laws or repealing existing ones because of weak implementation.

Globally, various strategies have been adopted to address the misuse of marital rape laws effectively, with countries like the US and the UK establishing clear legal definitions of marital rape to ensure consistent enforcement. In the UK, specialised police units address sexual violence, including marital rape cases. Many countries prioritise judicial training for judges and law enforcement to sensitively handle these issues, distinguishing between valid claims and false accusations.

Strong support systems like counselling and legal aid are vital for encouraging victims to come forward, as seen in Sweden and Norway. Public awareness initiatives in Canada and Australia play a crucial role in reducing stigma and enhancing understanding of marital rape. In Germany and France, regular data collection aids comprehension of the issue, supporting informed policy-making and law enforcement.

Discussions surrounding protective measures for women in cases of marital rape frequently highlight the topic of sexual violence experienced by men. The Justice Verma Committee's suggestion for gender-neutral rape laws was notably excluded from the Criminal Law Amendment Act of 2013, leaving male survivors without adequate judicial recourse. This oversight underscores the critical need for suitable legal frameworks and accurate data on sexual violence against men, reinforcing that safeguarding women does not diminish men's rights, who also need legal protections. In the absence of this, a very significant issue such as marital rape risks being reduced to a conflict between genders.

It is essential to align India's legal framework with international human rights standards to protect all individuals from sexual violence, regardless of their gender and marital status. Addressing the issue of marital rape necessitates both legislative changes and a transformation in societal perceptions regarding consent and respect within marriages. India must send an unequivocal message that violence of any form is unacceptable. 

(The author is Former Director, Office of Vice Chairperson, NITI Aayog, Government of India. Views are personal.)