Global Human Rights Defence

DELHI HIGH COURT TO HEAR PETITION ON CRIMINALIZING MARITAL RAPE
Members of All India Students Association (AISA) protest outside police headquarters in Delhi, India (October 2015), REUTERS/Anindito Mukherjee

Department: India
Author: Antoine Tremblay

In January 2022, the Delhi High Court began hearings over a batch of petitions [1] requesting a constitutional review of Exception 2 to Section 375 of the Indian Penal Code, which excludes “sexual intercourse or sexual acts by a man with his own wife” [2] from the definition of rape in Indian criminal law. In a country known for both widespread sexual violence against women as well as traditional conceptions of marriage and gender relations that subordinate women to men, the issue of marital rape has bitterly divided Indian society. 

Proponents of the unconstitutionality of Exception 2 and therefore of criminalisation of marital rape – including petitioners RIT Foundation, the All India Democratic Women’s Association, and three other individuals – have pointed to a National Family Health Survey from 2015-2016 showing that 83 percent of married victims of sexual violence identified their current spouse as the perpetrator, and another seven percent identified a former spouse [3], with women being 17 times more likely to face sexual violence from their husband than from anyone else [4], in a country – the most dangerous in the world for women according to a 2018 Thomson Reuters study [5] – where a woman is raped every 15 minutes [6].

As Dr Ranjana Kumari, director of the Delhi-based Centre for Social Research, puts it, “rape in marriage is very, very widely experienced by women across India, especially in the context of child marriages where young girls get married, and they have absolutely no agency to say yes or no because they don’t understand consent” [7].

However, a counter-movement has also sprung up in reaction to the petitions, rallying around hashtags like #marriagestrike and #NoRepublicDay4Men – India’s national holiday was on January 26 – and around organisations like the Save Indian Family Foundation, made up of men vowing to renounce marriage altogether should marital rape be criminalised as any other form of rape, claiming that an extension of the offence would lead to a surge in false accusations, notably, they say, for financial extortion [8]. Some women have backed their position too, including Barkha Trehan, the (woman) president of Purush Aayog, a civil society group, expressing concern that “if you will bring this rape law inside the marriage and the husband will be given punishment, then who will marry?” [9]

Opponents of the criminalisation of marital rape can already count on the support of Prime Minister Narendra Modi’s government too, who, in 2016, said that such a change would “destabilise the institution of marriage” and become a “tool for harassment of husbands” [10] – though this same government, in the same year, also published a study showing that 30 percent of married women surveyed in five states had experienced physical or sexual abuse at the hands of their husband [11].

Amidst the heated public debate, the Delhi High Court’s decision is also set to follow a spat of recent similar cases before jurisdictions across India’s various states. In August 2021, the Chhattisgarh High Court upheld section 375 of the Indian Penal Code in its current expression, reaffirming that even forcible or non-consensual intercourse with one’s wife was not illegal [12]. This came as a shock [13] in light of an almost simultaneous decision from the Kerala High Court the same month, which had found that marital rape was ground for divorce, saying “marital rape amounts to cruelty” and “occurs when the husband is under the notion that the body of his wife owes him” [14]. However, because that case in Kerala was a family law one, the court could not      directly examine the constitutionality of Exception 2 to Section 375 – a criminal law provision – leaving Delhi’s High Court to answer that question now. 

Indeed, Exception 2’s inconsistencies with key provisions of the Constitution of India’s [15] chapter on fundamental rights are prima facie flagrant. Among them, Section 14 on equal protection before the law, which the court might find conflicts with the lesser protection married women enjoy compared to non-married ones under the marital rape exception, as well as the lesser protection women generally enjoy compared to men against the high risk of sexual violence;      Section 15 on the prohibition of discrimination (including on the basis of sex), for the same reasons as mentioned above; and Section 27 on the right to life – many victims sadly die or suffer severe bodily harm at the hands of their aggressors – and liberty – including bodily autonomy and integrity – to name just a few. Rebecca John, amicus curiae before the Delhi High Court on this matter, argued that the marital exception to rape has to be viewed as “an instrument of oppression” [16]. 

India remains one of only 30 or so countries in the world where it is not criminal for a husband to rape his wife, with a few others like neighbouring Pakistan having unclear or nonspecific provisions [17]. Moreover, as the amicus curiae in this case further pointed out, “what is written in Exception 2, which has been given to us from a doctrine, propounded 200 years by our colonial masters does not reflect either the Indian man or the Indian woman, certainly not the Indian marriage”, adding that this doctrine, the doctrine of coverture, whereby a woman’s legal personhood is subsumed into her husband’s upon marriage [18], (wrongly) considers a wife “to have granted irrevocable sexual consent to her husband” [19]. Karuna Nundy, legal counsel for the petitioners, calls the exception “a British colonial relic” [20]. 

With that said, there are encouraging signs of change. As recently as January 11, 2022, the Delhi High Court said that “jurisdiction after jurisdiction” around the world have held that “merely because you are married, it is not enough to say (rape) is not an offence” [21]. Yet, the long-ruling Bharatiya Janata Party (BJP) and its leader Prime Minister Narendra Modi loom large over the court, wielding tremendous influence over its judges as they do over magistrates across the land [22] [23]. Running India since 2014 on a promise of traditionalism and Hindu nationalism, the BJP has made clear in recent years its penchant for authoritarianism and its distaste for feminism [24]. One can only hope the fundamental rights, safety, and dignity of Indian women will triumph in the end. 

The long-awaited ruling from the Delhi High Court is expected by March 2022. 

Footnotes

[1] Rimal Farrukh, “India Plans to Criminalize Marital Rape, So Some Men Are Boycotting Marriage”, Vice News (January 2022) https://www.vice.com/en/article/4awn89/india-marital-rape-laws-marriage-strike

[2] Indian Penal Code 1860 https://legislative.gov.in/sites/default/files/A1860-45.pdf, accessed March 2022

[3] Uravashi Prasad, “National Family Health Survey underscores need for serious discussion on marital rape”, The Indian Express (March 2018) https://indianexpress.com/article/gender/national-family-health-survey-underscores-need-for-serious-discussion-on-marital-rape/

[4] Rimal Farrukh, “India Plans to Criminalize Marital Rape, So Some Men Are Boycotting Marriage”, Vice News (January 2022) https://www.vice.com/en/article/4awn89/india-marital-rape-laws-marriage-strike

[5] Belinda Goldsmith & Meka Beresford, “Exclusive: India most dangerous country for women with sexual violence rife – global poll”, Thomson Reuters (June 2018) https://www.reuters.com/article/us-women-dangerous-poll-exclusive-idUSKBN1JM01X

[6] Madeeha Mujawar, “National Crime Records: one woman raped 15 miuntes in India”, CNBC (October 2019) https://www.cnbctv18.com/economy/national-crime-recordsone-woman-raped-every-15-minutes-in-india-4579141.htm 

[7] Joe Wallen, “Men’s rights activists protest introduction of marital rape law in India”, The Telegraph (February 2022) https://www.telegraph.co.uk/global-health/women-and-girls/mens-rights-activists-protest-introduction-marital-rape-law/

[8] Rimal Farrukh, “India Plans to Criminalize Marital Rape, So Some Men Are Boycotting Marriage”, Vice News (January 2022) https://www.vice.com/en/article/4awn89/india-marital-rape-laws-marriage-strike

[9] Ibid

[10] Ibid

[11] Joe Wallen, “Men’s rights activists protest introduction of marital rape law in India”, The Telegraph (February 2022) https://www.telegraph.co.uk/global-health/women-and-girls/mens-rights-activists-protest-introduction-marital-rape-law/

[12] Avantika Mehta, “No, the Chhattisgarh court was not offering up its opinion on marital rape. It was reiterating the law”, Newslaundry.com (September 2021) https://www.newslaundry.com/2021/09/03/no-the-chhattisgarh-court-was-not-offering-up-its-opinion-on-marital-rape-it-was-reiterating-the-law

[13] Sreemoyee Piu Kundu, “Why we still pussyfoot around criminalising marital rape”, Firstpost (January 2022) https://www.firstpost.com/india/why-we-still-pussyfoot-around-criminalising-marital-rape-10288361.html

[14] Chirali Sharma, ““Marital Rape Occurs When The Husband Is Under The Notion That Body Of His Wife Owes To Him” Kerala HC Upholds Marital Rape As Grounds For Divorce”, ED Times (August 2021) https://edtimes.in/marital-rape-occurs-when-the-husband-is-under-notion-that-body-of-his-wife-owes-to-him-kerala-hc-upholds-marital-rape-as-grounds-for-divorce/

[15] Constitution of India 1949 https://legislative.gov.in/constitution-of-india, accessed March 2022

[16] Sofi Ahsan, “Marital rape exception an instrument of oppression: Amicus curiae tells Delhi HC”, The Indian Express (January 2022) https://indianexpress.com/article/cities/delhi/marital-rape-oppression-amicus-curiae-delhi-hc-7733957/

[17] “Marital rape laws by country”, Wikipedia https://en.wikipedia.org/wiki/Marital_rape_laws_by_country#:~:text=These%20rights%20have%20increasingly%20been,or%20rape%20by%20anyone%20else, accessed March 2022

[18] Seerat Chabba, “India: Why are some men threatening “marriage strike”?”, DW News (January 2022) https://www.dw.com/en/india-why-are-some-men-threatening-marriage-strike/a-60574198

[19] Sofi Ahsan, “Marital rape exception an instrument of oppression: Amicus curiae tells Delhi HC”, The Indian Express (January 2022) https://indianexpress.com/article/cities/delhi/marital-rape-oppression-amicus-curiae-delhi-hc-7733957/

[20] Joe Wallen, “Men’s rights activists protest introduction of marital rape law in India”, The Telegraph (February 2022) https://www.telegraph.co.uk/global-health/women-and-girls/mens-rights-activists-protest-introduction-marital-rape-law/

[21] Sreemoyee Piu Kundu, “Why we still pussyfoot around criminalising marital rape”, Firstpost (January 2022) https://www.firstpost.com/india/why-we-still-pussyfoot-around-criminalising-marital-rape-10288361.html

[22] Subodh Ghildiyal, “Why are judges repeatedly talking about judicial independence: Congress asks BJP”, The Times of India (July 2021) https://timesofindia.indiatimes.com/india/why-judges-repeatedly-talking-about-judicial-independence-cong-asks-bjp/articleshow/84058963.cms

[23] Grant Wyeth, “Is the Indian Judiciary Independent Anymore?”, Australian Institute of International Affairs (October 2020) https://www.internationalaffairs.org.au/australianoutlook/is-the-indian-judiciary-independent-anymore/

[24] Azeem Ibrahim, “Modi’s Slide Toward Autocracy”, Foreign Policy (July 2020) https://foreignpolicy.com/2020/07/13/modi-india-hindutva-hindu-nationalism-autocracy/

Bibliography

Avantika Mehta, “No, the Chhattisgarh court was not offering up its opinion on marital rape. It was reiterating the law”, Newslaundry.com (September 2021) https://www.newslaundry.com/2021/09/03/no-the-chhattisgarh-court-was-not-offering-up-its-opinion-on-marital-rape-it-was-reiterating-the-law

Azeem Ibrahim, “Modi’s Slide Toward Autocracy”, Foreign Policy (July 2020) https://foreignpolicy.com/2020/07/13/modi-india-hindutva-hindu-nationalism-autocracy/

Belinda Goldsmith & Meka Beresford, “Exclusive: India most dangerous country for women with sexual violence rife – global poll”, Thomson Reuters (June 2018) https://www.reuters.com/article/us-women-dangerous-poll-exclusive-idUSKBN1JM01X

Chirali Sharma, ““Marital Rape Occurs When The Husband Is Under The Notion That Body Of His Wife Owes To Him” Kerala HC Upholds Marital Rape As Grounds For Divorce”, ED Times (August 2021) https://edtimes.in/marital-rape-occurs-when-the-husband-is-under-notion-that-body-of-his-wife-owes-to-him-kerala-hc-upholds-marital-rape-as-grounds-for-divorce/

Constitution of India 1949 https://legislative.gov.in/constitution-of-india

Grant Wyeth, “Is the Indian Judiciary Independent Anymore?”, Australian Institute of International Affairs (October 2020) https://www.internationalaffairs.org.au/australianoutlook/is-the-indian-judiciary-independent-anymore/

Indian Penal Code 1860 https://legislative.gov.in/sites/default/files/A1860-45.pdf

Joe Wallen, “Men’s rights activists protest introduction of marital rape law in India”, The Telegraph (February 2022) https://www.telegraph.co.uk/global-health/women-and-girls/mens-rights-activists-protest-introduction-marital-rape-law/

Madeeha Mujawar, “National Crime Records: one woman raped 15 miuntes in India”, CNBC (October 2019) https://www.cnbctv18.com/economy/national-crime-recordsone-woman-raped-every-15-minutes-in-india-4579141.htm

Nehal Johri, “What is behind India’s rape problem?”, DW News (December 2019), https://www.dw.com/en/what-is-behind-indias-rape-problem/a-51739350

Rimal Farrukh, “India Plans to Criminalize Marital Rape, So Some Men Are Boycotting Marriage”, Vice News (January 2022) https://www.vice.com/en/article/4awn89/india-marital-rape-laws-marriage-strike

Seerat Chabba, “India: Why are some men threatening “marriage strike”?”, DW News (January 2022) https://www.dw.com/en/india-why-are-some-men-threatening-marriage-strike/a-60574198

Sofi Ahsan, “Marital rape exception an instrument of oppression: Amicus curiae tells Delhi HC”, The Indian Express (January 2022) https://indianexpress.com/article/cities/delhi/marital-rape-oppression-amicus-curiae-delhi-hc-7733957/

Sreemoyee Piu Kundu, “Why we still pussyfoot around criminalising marital rape”, Firstpost (January 2022) https://www.firstpost.com/india/why-we-still-pussyfoot-around-criminalising-marital-rape-10288361.html

Subodh Ghildiyal, “Why are judges repeatedly talking about judicial independence: Congress asks BJP”, The Times of India (July 2021) https://timesofindia.indiatimes.com/india/why-judges-repeatedly-talking-about-judicial-independence-cong-asks-bjp/articleshow/84058963.cms

Uravashi Prasad, “National Family Health Survey underscores need for serious discussion on marital rape”, The Indian Express (March 2018) https://indianexpress.com/article/gender/national-family-health-survey-underscores-need-for-serious-discussion-on-marital-rape/

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Kenza Mena
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Kenza Mena has expertise in international criminal law since she is currently pursuing a last-year Master’s degree in International Criminal Justice at Paris II Panthéon-Assas and obtained with honors cum laude an LLM in International and Transnational Criminal Law from the University of Amsterdam. She also holds a Bachelor’s degree in French and Anglo-American law. 

Since September 2021, she has been the coordinator of Team China at GHRD, a country where violations of human rights, even international crimes, are frequently perpetrated by representatives of the State. Within Team China, awareness is also raised on discrimination that Chinese women and minorities in the country and, more generally, Chinese people around the world are facing.

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