[Answered] “While most of the developed world has penalised marital rape, surprisingly, there is no law to protect married women against marital rape in India”. Critically analyse the need of law against marital rape in India. Discuss various challenges while legislating such a law.

According to the UN Women’s 2011 report, out of 179 countries for which data was available, 52 had amended their legislation to explicitly make marital rape a criminal offence. India is one such country where marital rape is yet to be even recognised, least criminalised.

Marital rapes in India:

1. In a survey conducted by International Centre for Research on Women (2011) nearly 20% of Indian men reported at least once having carried out sexual violence against a female partner.
2. In another study by National Health and Family Survey (NFHS-4) for the year 2015-16, 5.6% women have been reported as victims under the category of “physically forced her to have sexual intercourse with him even when she did not want to”.
3. In August 2017, the Centre, in an affidavit filed in response to pleas seeking to criminalise marital rape in the Delhi High court, stated that marital rape cannot be made a criminal offence as it could become a phenomenon which may destabilise the institution of marriage and an easy tool for harassing husbands.
4. In the aftermath of the Jyoti Singh gangrape in 2012, Justice Verma Committee constituted with an objective to strengthen the anti-rape laws in the country. strongly recommended that the exception for marital rape be removed. The Committee also highlighted the recommendations made by the CEDAW Committee in respect of India in 2007 which asked for “widening the definition of rape to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape”.
5. The recent judgment by the Gujarat high court in Nimeshbhai Bharatbhai Desai vs State of Gujarat (2017) elaborately dealt with the issue of marital rape, and stated that, “making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape”; however, due to non-recognition of marital rape as a crime under the Indian legal framework, the court held that the husband is liable only for outraging her modesty and unnatural sex.
6. Similarly, the apex court in Independent Thought vs Union of India (2017) has criminalised sexual intercourse with a minor wife aged between 15 and 18 years, but has refrained from making any observation regarding the marital rape of a woman who is above 18 years of age.
7. Marital rape is a common but under-reported crime. A study conducted by the Joint Women Programme, an NGO, found that one out of seven married women had been raped by their husband at least once.20 They frequently do not report these rapes because the law does not support them.

Issues and Challenges wrt marital rape law in India:

1. Difficult to prove– It will be very difficult to provide evidence of marital law and prove the crime. An evidence need to be solid to prove any crime. In case of marital rape, whole family will support his son, and it will be tough for women to prove the crime.
2. Threat to life– It will further increase threat to woman’s life by her husband and her in laws. Any attempt to go against them may lead to further atrocities and an attempt on her life.
3. High illiteracy rate– Country where 26% of total population, and 35% of women population are illiterate, such a law need enormous efforts. Many woman will not be able understand the law. Especially woman of lower strata where marital rape is more prevalent and is under reported, impact of such law would be minimal and need extra efforts for implementation.
4. Poverty– India where millions of people are living under poverty, such law may not be effective as woman may not be able to use effective means to use law due to poverty.
5. Extreme religious beliefs and the very ‘sanctity’ of marriage– Many woman still believes marriage as sacrosanct and husband as ‘pati parmeshvar’. They would like to suffer than to break marriage. Thus sensitising them fir their rights and for such law will not be easy.
6. Increase burden on judiciary– Due to the near impossibility of proving marital rape, and false cases, its criminalisation would only serve as an increased burden to the already overburdened legal system.
7. False cases– Dissatisfied, angry, vengeful wives might charge their innocent husbands with the offence of marital rape. Further it will be difficult for husbands to prove his innocence.
8. Increase in divorces– Marital rape laws would destroy many marriages by preventing any possible reconciliation.

The mere fact that marital rape would be very difficult to prove is no reason for not recognising it as a crime. It may be showed that criminalisation of marital rape, serves to recognize rape in marriage as a criminal offence and would have a deterrent effect on prospective rapist husbands. Enacting such a law need proper debates and discussion. Also such law should be clear in objectives and definitions related to marital rape.