Marital Rape

Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element and does not always involve physical violence.

According to the National Family Health Survey (NFHS-5), around 30% of married women have experienced spousal violence, yet marital rape is still legally exempt. This raises serious concerns about women’s rights and equality under the law.
Bharatiya Nyaya Sanhita (BNS): includes a marital rape exemption in Section 63, which states that sexual acts between a man and his wife are not considered rape if the wife is at least 18 years old.
Article 14: The non-criminalization of marital rape violates the principle of equality, treating married women differently from unmarried women.
Violation of Article 21: It disregards a woman’s right to personal liberty and bodily autonomy.
Contradiction with POCSO: Marital rape is criminalised if the wife is under 18, but similar protections are not extended to adult women.
Judicial Intervention: Although some High Courts have questioned the constitutionality of the exemption, no clear judicial verdict has emerged yet.

Patriarchal: The legal exemption reinforces patriarchal beliefs that a wife is the husband’s property.
Stigma: Marital rape victims often face social stigma and are discouraged from speaking out, leading to underreporting.
Mental Health: Prolonged sexual violence within marriage can lead to severe mental trauma, including depression and anxiety.
Women’s Rights and Dignity: Non-recognition of marital rape undermines women’s rights to dignity and equality in marriage.
Lack of Legal Recourse: Women have limited options for seeking justice, leading to feelings of helplessness and insecurity.

Ensuring Gender Equality: Criminalizing marital rape would uphold women’s rights to equality and bodily autonomy, bringing India in line with global standards.
Protecting Human Rights: The United Nations and other international bodies recommend the criminalisation of marital rape as a fundamental human right.
Global Precedents: Countries like the UK, Canada, and Australia have already criminalised marital rape.
Strengthening Laws: Criminalization would fill gaps in existing laws, such as the Domestic Violence Act, providing comprehensive protection.
Reducing Spousal Abuse: Recognizing marital rape would deter abusive spouses.

Potential for Misuse: Criminalising marital rape could lead to false accusations and misuse of the law.
- NCRB Crime in India Report 2020: ~8% of all cases reported for rape were found to be ‘false’.
Impact on Marriage: Criminalization could destabilise marriages and lead to an increase in divorce rates.
Existing Laws: Some argue that laws like the Protection of Women from Domestic Violence Act (PWDVA — has provisions to ensure women live in violence-free homes) already address the issue.
Difficult in Proving: Proving marital rape in a court of law could be challenging due to the private nature of the crime.
Cultural and Social Factors: Resistance to criminalising marital rape is partly rooted in cultural and religious beliefs about marriage. Marital rape is broadly considered a Western construct.

Criminalize Marital Rape: India should criminalise marital rape to ensure legal protection for women, like laws in the UK and Australia.
Strengthen Legal Safeguards: Introduce safeguards to prevent misuse of the law, such as strict guidelines for evidence collection and trial procedures.
Awareness Campaigns: Run nationwide awareness campaigns to educate communities about marital rape and change social attitudes toward spousal consent.
Judicial Reform: Courts should fast-track marital rape cases and provide gender-sensitive training for judges and law enforcement officers.
Support Services: Strengthen victim support with counselling and rehabilitation, drawing inspiration from Sweden’s comprehensive survivor support systems.

Criminalising marital rape in India is essential to ensuring women’s equality, dignity, and autonomy within marriage. India’s legal framework must evolve to reflect modern human rights standards and protect all citizens, irrespective of marital status.

Reference: The Hindu

PMF IAS Pathfinder for Mains – Question 3

Introduction: Define marital rape. Elaborate on its legal status.
Body: Mention the social implications arising out of the legal status of marital rape. Present the arguments for and against and elaborate on them.
Conclusion: Since the question does not ask you to present suggestions/solutions, keep it brief.