The country must criminalize marital rape right away

News: The Delhi high court is hearing whether the marriage exception to Section 375 of the Indian Penal Code should be struck down. It will provide legal recourse to married women if they are forced into sexual intercourse by their husbands.

What is the present legal position?

According to law, consent is presumed and continuous for the duration of the marriage once the woman is married. It means that consent does not need to be negotiated before each marital sexual encounter.

What does NFHS-5 reveal about marital rape?

According to National Family Health Survey (NFHS-5), over 24% of Indian women reported facing either domestic or sexual violence.

Instances of forced sex in the absence of consent are high in Karnataka (31%) and low in Odisha (2.5%). 5.4% of women in all-India reported that they had been forced into sex by their husbands, and over 27.4% reported being physically abused.

Why marital rape needs to be criminalized?

One, legal consequences attached with marital rape will act as a deterrent.

Two, forced sex and other forms of sexual violence is a violation of women’s human rights. It damages India’s global standing because India is a signatory to the convention on the elimination of all forms of discrimination against women (CEDAW).

Three, marital rape has long-term consequences on women’s and their children’s health and well-being. For example, injuries, unwanted pregnancies, poor reproductive and sexual health and high risk of sexually transmitted infections along with poor mental health.

Why consent is a complex matter?

One, people see it as a marital obligation, and that is why many women give consent unwillingly. It is also justified on the ground that men have higher sex drive and sexual needs to be fulfilled.

Two, women are not comfortable in discussing sexual violence due to lack of vocabulary or imagery to describe forms of marital rape, presumption of consent, or lack of legal option.

Three, men’s rights activists have raised the issue of the misuse of marital rape law. For example, due to opposition and misuse, Section 498(A) is diluted, and now the Supreme Court has said that there is no need for immediate arrests of husbands and in-laws unless complainants bear visible signs of injury.

What is the way forward?

First, there is a need to change the law to give the problem visibility and acknowledge the harm.

Second, the law to criminalize marital rape should not make an exception only because consent is violated by a person known to the woman (her husband in this case).

Source: This post is based on the article “The country must criminalize marital rape right away” published in Live Mint on 25^th Jan 2022.