She sought legal protection, but found herself up against a decades-old exception in the law. New Delhi: Nearly 12 years ago, a married woman approached the court with an allegation that her husband time and again had sexual relations with her against her wishes.
The legislation has traditionally treated sexual intercourse by a husband with his wife differently from a similar act involving a woman who is not his wife. Known as the Marital Rape Exception, it has since become the subject of a long-running legal battle. The matter then moved to the Supreme Court.
The issue eventually reached the Delhi High Court, where judges delivered a split verdict in March 2022. On Monday (September 7), the Supreme Court did not fix a new date to hear the petitions, saying it would first wait for the Centre’s response.
The survey also found that among women who reported sexual violence, the perpetrator was most often their husband rather than a stranger. Women’s rights groups cite these findings while arguing that sexual violence within marriage is a real social issue, even though the criminal justice system does not record it as a separate offence. The data records cases of sexual violence within marriage, while the law does not treat it as a separate offence. A woman may report being forced into a sexual act by her husband, while the law does not treat that act as rape in the same way it would if the accused were someone outside the marriage. NCRB data also gives an idea of the violence women face within domestic relationships. These cases do not cover marital rape and cannot be used as a direct measure of sexual violence within marriage. However, they do show the scale of cases involving violence or cruelty within close family relationships. The answer will determine how Indian law treats consent within marriage and whether the existing marital rape exception can continue in its present form.
The marital rape petitions therefore place a specific legal question before the Supreme Court: whether a woman’s consent to marriage can be treated as continuing consent to sexual relations or whether she retains the right to refuse her husband at any point. However, the National Family Health Survey-5 offers some insight into violence experienced by married women. It says around 29 per cent of married women aged 18 to 49 reported having experienced physical, sexual or emotional violence by their husbands at some point in their lives. Cases registered under Section 498A of the Indian Penal Code (IPC), relating to cruelty by a husband or his relatives, have accounted for more than 1 lakh cases in recent NCRB reports.
There is no separate category in the data released by the National Crime Records Bureau (NCRB) for marital rape, so official crime records do not provide a direct annual count of such cases. The supporters of criminalising marital rape say marriage does not end a woman’s physical autonomy. They also argue that consent is necessary in every sexual relationship and that giving wives less protection under criminal law can conflict with the constitutional guarantee of equality. The Delhi High Court itself had differing views on the matter. One judge held that the exception was unconstitutional. The other disagreed with that position. The divided ruling sent the issue to the apex court, where the larger legal question now includes the relationship between marriage, consent, equality and the protection available to women under criminal law. Those opposing criminalisation point to several problems they say could arise. They argue that changing the law could affect the institution of marriage, increase the possibility of false cases and turn private disputes between husbands and wives into criminal proceedings. The top court will eventually have to consider these competing legal arguments while examining the validity and scope of the existing exception.
In March 2022, a division bench delivered a split verdict on the constitutional validity of the marital rape exception.
The case comes down to a basic question: does marriage mean a wife has given permanent consent to sex or can she refuse her husband? Indian law recognises that having sexual intercourse with a woman against her will can amount to rape. Those challenging the exception argue that marriage does not take away a woman’s right to decide what happens to her body. They say consent should be equally important inside and outside marriage. The petitioners have questioned why consent should lose its importance after marriage if it is what separates rape from consensual sex. Their argument also rests on constitutional rights. They say married women should receive the same legal protection as other women and that marriage should not reduce a woman’s right to bodily autonomy and dignity.
However, aan exception has historically applied when the woman is the man’s wife.
