Story So Far: Recognition of marital rape in India

Samiksha Sawant | The Supreme Court on Thursday, for the first time, recognised marital rape for the purpose of unwanted pregnancy for abortion and held that rape under the Medical Termination of Pregnancy (MTP) Act includes a husband's act of sexual assault or rape committed on his wife.

The Court held that wives, who conceived out of forced sex by their husbands, will also come within the ambit of "survivors of sexual assault or rape or incest" mentioned in Rule 3B(a) of the Medical Termination of Pregnancy Rules. For context, Rule 3B(a) mentions the categories of women who can seek termination of pregnancy in the term of 20-24 weeks.

How did the fight against marital rape in India begin? The first petition to criminalise marital rape in India was filed at the Delhi High Court in 2015 by a nonprofit called the RIT Foundation. More petitions were then filed in 2017, including one by the All India Democratic Women’s Association, that Adv. Karuna Nundy, a crusader of the movement to criminalise marital rape, is representing in court. Before this, the JS Verma Committee, formed in the aftermath of the December 2012 rape case, also recommended changes to rape laws, including making marital rape a criminal offence.

The term marital rape refers to unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent, as per Legal Services India. According to the National Family Health Survey (NFHS)-5 published this year, approximately 32 percent of women in India who have ever been married have experienced spousal physical, sexual or emotional violence (NHFS-5). However, the subject that is a reality for several women in the country is still taboo, with the government refusing to recognise and criminalise marital.

Intimate partner violence is one of the most common forms of violence experienced by women globally.

👏🇮🇳Just yesterday, India's Supreme Court defined marital rape as rape in a landmark decision & extended abortion rights to 24 weeks & for all women.@Manveena @JHBantock https://t.co/4P7MJc6JE7 pic.twitter.com/2i3IGQ6g8d

— Anita Bhatia (@anita_bhatia1) September 30, 2022

In a written response in 2016, the then Women and Child Development Minister Maneka Gandhi stated that the concept of marital rape cannot be applied in India "due to various factors such as level of education/illiteracy, poverty, religious beliefs, the society's mindset to treat marriage as a sacrament."

In 2017, the Centre had told the Delhi High Court that criminalising marital rape “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”. At the beginning of this year, it said, among other things, that misuse of law and lack of a mechanism to verify when consent stands withdrawn by the wife makes it difficult to criminalise marital rape and India should move cautiously. It repeatedly asked for time to study the issue before that. 

While the Central Government has been dodging the subject, India's Judiciary on several occasions this year, has recognised the sex/gender-based violence against spouse. 

In March this year, the Karnataka High Court ruled that "rape is a rape," whether it is committed by a husband against his wife, refusing to quash rape charges filed by a wife against her husband. 

India's rape laws under IPC Section 375 says “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.” Before 2017, the marital rape exemption was applicable if the wife was over the age of 15 years. In October 2017, the Supreme Court ruled that the section should read "the wife not being under the age of 18." However, this decision was limited to ensuring that the IPC was consistent with the age of consent, which is 18, and thus did not address the larger issue of the adult marital rape exception.

The fact that Indian men are on “marriage strike” against marital rape laws tells us one basic thing about our society, men want unlimited access to women’s bodies. Don’t tell me these laws will be misused. Just know that if you are on strike it’s best you don’t get married.

— Ntasha Bhardwaj (@ntashabhardwaj) January 21, 2022

In May this year, two judges Delhi High Court after hearing several petitions for criminalising marital rape, delivered a split decision, leaving the law unchanged. Justice Rajiv Shakdher struck down the exception as unconstitutional, but Justice C. Hari Shankar rejected the criminalisation plea. He said any change in law should be carried out by the legislature.

The case was then passed on to the Supreme Court, which began hearing them in September. On September 16, the SC sought a response from the Central government on the petitions against the split verdict. However, the next hearing on the issue has been scheduled after five months.

Meanwhile, when the hearings for the pleas to criminalise marital rape began in Delhi HC in January this year, several men and even some women started calling for #MarriageStrike on Twitter. Supposedly started by the ‘Save India Family Foundation’, a men’s rights activism group, the trend expressed fear of misuse of this law, if it is enacted. Several men's rights groups like Men Welfare Trust have been opposing and fighting against criminalisation of marital rape.

India is one of the few countries that do not grant married women above to age of 18 to file a complaint against marital rape. In these circumstances, the SC's verdict recognising marital rape for the first time is a historic and significant step in the fight.