New Delhi: Despite having stringent laws against rape, non-consensual sex and sexual harassment, the law in India has an exemption for “marital rape”. Exception 2 to Section 375 (rape) of IPC says that sexual intercourse or sexual acts by a man with his wife is not “rape”. This exception provides immunity to a husband from punishment under Section 376 for sexual assault on his wife as long as she is above 15 years of age.
On this matter, the Gujarat high court on Wednesday agreed to re-examine the constitutional validity of categorising marital rape as an “exception” to a law that criminalises sexual assault under the Indian Penal Code (IPC).
According to Hindustan Times, the division bench of Justices J.B. Pardiwala and Niral R. Mehta said, “It is high time that a writ court undertakes the exercise of considering, whether the exception-2 to Section 375 of the IPC could be termed as manifestly arbitrary and makes a woman’s fundamental right to sexual autonomy subject to the whims of her husband.”
The high court made these observations while hearing a plea moved by Vadodara resident Jaideep Verma and issued notices to the Union and state governments on the matter.
“It is against her right to personal liberty, right to refuse, right to reproductive choices and her right to privacy as well,” the petition says, according to the Times of India. It further said that the exception granted to marital rape has created an artificial distinction between survivors of sexual assault.
It also said that while a man is liable to be punished for sodomy on his wife, he can’t be penalised for marital rape, which is “illogical”.
The matter will be next heard on January 19, 2022.
In 2018, the Supreme Court had observed that a woman is not a “chattel” or property of men, and every woman, regardless of marital status, possesses the inalienable right of sexual autonomy. The apex court had also criticised the assumption that a woman loses her sexual agency to her husband when entering into a marriage, and opined that sexual autonomy is an inviolable core of human dignity.
The apex court made these observations while ruling against the criminalisation of adultery law (Section 497 of IPC), and saying that the provision deprives women of their “autonomy, dignity and privacy”.
An earlier article in The Wire analyses how “marriage” and “consent” can prove to be a double-edged sword.
Women’s rights lawyer Flavia Agnes has argued that by criminalising marital rape, we place sexual violence on a pedestal of sorts as though it is somehow worse than other forms of domestic violence thereby feeding into the stereotype that sexual violence accompanies a social stigma and therefore needs to have a harsher punishment.
However, as the article noted: “[W]hy should the category of married women suffice with more generalised laws under domestic violence than those accessed by their unmarried counterparts.”
According to the UN Women’s 2011 report, out of 179 countries for which data was available, 52 have laws against marital rape, including Nepal, Bhutan, Brazil and Australia.