The recent verdict by the Supreme Court on all women’s right to safe abortion in India, whether married or unmarried, has far reaching implications not just in terms of women’s reproductive rights but also for women’s safety and sexual autonomy.
In a significant ruling, the Supreme Court held on Thursday that all women are entitled to safe and legal abortion till 24 weeks of pregnancy under the Medical Termination of Pregnancy (MTP) Act, and making any distinction on the basis of their marital status is "constitutionally unsustainable".
This means, under the MTP, a married woman seeking abortion on grounds of marital rape has the full right to do so. The top court also said the meaning of offence of rape must include marital rape for the purpose of the MTP Act.
The top court’s recent observation that the meaning of rape must include marital rape for the purpose of the Medical Termination of Pregnancy Act is a win for women’s rights activists fighting for criminalising marital rape. However, activists have added the order does not make it an offence which could only happen by broadening the ambit of IPC section 375.
Is Marital rape illegal in India?
No, it isn't. In fact, it is specifically excluded from the list of sexual offences mentioned din the IPC. Exception 2 of Section 375 of the Indian Penal Code (IPC) which deals with rape states that sexual intercourse by a man with his own wife is not rape.
In January this year when a two-judge bench of the Delhi High Court started hearing a petition demanding the criminalisation of marital rape. In May, a two-judge bench comprising Justice Rajiv Shakdher and C Hari Shankar on Thursday passed a split judgement on the matter, opening the case up to further review from the Supreme Court.
While Justice Rajiv Shakdher voted in favour of striking down the exception, Justice C Hari Shankar stated that sex between husband and wife can never be considered rape. He went on to state that it was not unconstitutional of the legislature to treat sexual acts between husband and wife, irrespective of whether they are consensual or forced, as different from non-consensual sexual acts between two strangers.
While the SC observation on marital rape with respect to the MTP Act is progressive and a step in the right direction, activists state that the problem will remain as long as marital rape is not recognised as an offence under the IPC.
Though progressive, the judgement does not specifically mention anything about broadening the ambit of rape to include cases wherein a husband has sex with his wife without her consent. The ambit of Section 375 remains limited. However, activists agree that such a stance by the SC puts the wheels in motion and that the ball is now in the Parliament’s court. “They are talking about rape and marital rape so it is the most significant part of the judgement. It is a progressive stance that the government has taken and the SC has cleared a big bottleneck for women. Now the SC has recognised it so Parliament should also move on part of the legal framework,” Centre for Social Research director Ranjana Kumari told PTI.
Marital rape laws across the world
Sex was seen as part of the “marriage contract” under which a wife was obliged to provide her husband with consent playing no part in it. The shift toward criminalising marital rape gained momentum across several western countries in the 1970s after years as feminist discourse over women’s autonomy and agency as well as the right to protect and seek action against sexual violence of all forms gathered momentum.
The anti-rape movements that demanded sexual autonomy for women over their bodies including married women became a big part of the women’s rights movements of the 20th century.
In 2019, there were nearly 150 countries that had criminalised marital rape in some form or the other. While some countries follow the route of criminalising it explicitly, In others, there are punishments for husbands using violence to have intercourse with their wives even though marital rape is not explicitly understood as rape.
Explicit decriminalisation of rape means the law makes no distinction between rape and martial rape. These countries include Australia, Canada, France, Hong Kong. Incidentally, several African nations such as the conflict-ridden Rwanda, Namibia, such and Polynesian island nations like Sierra Leone, Samoa, Mozambique, and others.
Simple decriminalisation is followed in several other countries where marital rape might be a punishable offence in certain cases and is subject to varying degrees of punishment. In Liberia, for instance, rape laws do not specifically criminalise spousal rape. However, the “marital exemption” was removed from the law in 2006.
Some countries have provisions for criminalising sexual violence by spouses but do not specifically outlaw marital rape. In Kuwait, for instance, rape is punishable by a maximum penalty of death. The law did not cover spousal rape. But in 2020, Kuwaiti government passed a law against domestic violence which criminalised "physical, psychological, sexual or financial mistreatment, whether in words or actions" by family members and spouses. Malaysia also does not criminalise marital rape but the husband =can be penalised for using violence or force to have intercourse with his wife.
India, on the other hand, is among the list nations where marital rape is “explicitly excluded”. For instance, India’s rape laws make specific mention to intercourse between husband and wife and recognise it as legal in all forms. Incidentally, India’s neighbours Nepal and Bhutan have both explicitly decriminalised marital rape.
There are 32 countries where marital rape is not a criminal offence. These include China, Bangladesh, Laos, Haiti, Myanmar, Mali, Senegal, Tajikistan, Afghanistan, Malaysia, Egypt, Lebanon, Kuwait, Yemen, Singapore, Libya, Oman, and others. Incidentally, among India’s neighbours, Bhutan has laws criminalising marital rape. Countries where marital rape is “explicitly excluded” include India, North Korea, Iran, Bahrain, The Bahamas, Maldives, Myanmar, Nigeria, Oman and others. Some countries such as Egypt depend on Case Laws to deal with spousal violence while in some countries, such as Pakistan, the laws against marital rape remain unclear.
(With inputs from PTI)