On May 12, the Delhi High Court delivered a split verdict on the constitutionality of the marital rape exception.
Justice Rajiv Shakdher, who headed the two-judge bench, struck down as unconstitutional the exception to section 375 of the Indian Penal Code (which says that sexual intercourse by a man with his wife aged 18 or above is not rape even if it is without her consent).
However, justice C Hari Shankar, the other judge on the division bench, disagreed and held that there were no grounds for the court to strike down the exception which was justified under Article 14 (equality before law), because there was “intelligible differentia” created by marriage.
Intelligible differentia basically refers to a difference capable of being understood.
To put things into perspective, one in every three women in India, between the ages of 15 and 49, stated that they had experienced some form of violence (sexual, physical or emotional) from their spouses, as per that latest NFHS (National Family Health Survey) data.
Nearly 83% reported their current husband as the perpetrator, while 13% reported their former husband as the perpetrator.
Where most countries in the world recognise that rape is rape and rape; it is a crime. So what’s holding India back to criminalizing marital rape?
The Indian government also suggested that those who are seeking to stop women being raped by their own husbands, are running towards western culture, because in India there are more problems to be focus on such as poverty, unemployment and illiteracy.
This means that the Indian government clearly stated that Indians are uneducated and after marriage, women are dutifully bound to their husbands. Later, the Indian government also stated that if they criminalise marital rape in India, it will effect marriage.
Basically, it means that husbands are allowed to rape their wives as long as they are married; and women can’t object to marital rape just to save their marriages. Are only women responsible for saving their marriage, and not men?
Marital rape leaves physical and mental scars on the survivor, which remain with her years after the offence. Does the institution of marriage allow husbands to force themselves on their wives whenever they want?
For how long do women have to wait to have their freedom after marriage? Does marriage really give one a license to have sex with one’s partner whenever one wants? No, consent key; it matters the most!