The Delhi High Court’s divisional Bench on May 11, 2022 delivered a split verdict in the marital rape case regarding the validity of Exception 2 to Section 375 of the Indian Penal Code (IPC). The exception says that a rape charge cannot be filed against a man who has non-consensual sex with his wife. This very exception and its validity were challenged before the Delhi High Court. The judgement of the two judges — Justices Rajiv Shakdher and C Hari Shankar — differed on the matter. While Justice Shakdher struck down the provision as unconstitutional, Justice Shankar upheld it.

“The judgement is problematic on many counts and it is unclear and contradicts itself in some ways. At one place it says that ‘a husband forcing his wife to have sex with him, despite her unwillingness is wrong’ but goes on to say that ‘the man, in such a situation, requests her, on a particular occasion to have sex, he is exercising a right that vests in him by marriage, and requests his wife to discharge an obligation which, too, devolves on her by marriage’. Family and collective decision-making are important across cultures, societies and governments but that cannot circumscribe the rights of individuals. This would leave the socially and economically less powerful vulnerable, which majority of women are in the marital power equation. Bodily autonomy is a human right, and it is the foundation upon which other human rights are built. India signed the CEDAW convention in 1994 under which we have agreed to respect the bodily autonomy of women. It is essential for the prevention of violence against women, and this becomes especially important in a patriarchal society like ours where a large number of women face abuse and violence in the hands of intimate partners,” says Tanushree Bhowmik, domestic violence counsellor and development professional.

India is one of the 36 countries including Pakistan, Afghanistan, Bangladesh, Egypt, Algeria and Botswana that legalises marital rape. According to a study, during the first month of the COVID-19 lockdown in 2020, data revealed an alarming rise in reported cases of domestic violence: women in India were 17 times more likely to be assaulted by their spouses during the lockdown. The National Commission for Women helpline reported that distress calls reporting domestic violence had nearly doubled.

India’s Stand on Marital Rape

India is engaged in a heated debate about whether to make marital rape illegal. Far from criminalising the act, the section of India’s Penal Code on sexual offenses specifically calls out marital rape as “not rape.” It reads, “Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.” And yet, we know that “the most common form of violence that women experience is from an intimate partner” and 30 percent of women above age 15 around the world have experienced physical and sexual partner violence. In fact, around the world, the cost to world GDP of deaths due to interpersonal violence is ten times the cost of deaths due to war in a year. And this is not taking into account the personal loss faced by the perpetrators of violence

The exception in the law exists because India is still following the laws made by the British in the 1860s. Although Britain and its former colonies like Australia now have laws criminalising marital rape, India seems to be still stuck in the age-old conservative norms. Over 30% of women in India aged between 18 to 49 reported having experienced spousal violence, as per the latest Indian government’s National Health Family Survey. According to the survey of 724,115 women, an average Indian woman is 17 times more likely to face sexual violence from her husband compared to anyone else. A lot of women endure sexual violence in a marriage. It is already difficult for a woman to be vocal about sexual violence in the marriage. Some of the common reasons are the fear of a downfall in the family’s reputation when reported, an emotional dependency on the abusive partner and social stigma around divorce. Considering how societal sanctions further repress a victim of marital rape, the least that one could expect is for the laws of the nation to provide proper redressal for a victim of sexual abuse in marriage.

“Divorce proceedings lead to lifelong mental suffering on both parties.
Further, it leads to losing a lot of money for the partner paying alimony, matrimony, and child support among others. Irrespective of whether the state and judiciary see marital rape as legal, notwithstanding anything, repeated non-consensual behaviour in a marriage will drive your partner to seek divorce (opt-out) of the situation and they will be well within their rights to claim damages for mental cruelty & harassment,” says Jahnvi Sharma, Advocate Supreme Court of India & Co-founder The Virtual Lawyer.

Mental Health of rape survivors

The National Women’s Study produced dramatic confirmation of the mental health impact of rape. The study determined comparative rates of several mental health problems among rape victims and non-victims. The study ascertained whether rape victims were more likely than non-victims to experience these devastating mental health problems like Post-traumatic Stress Disorder.

The first mental health problem examined was post-traumatic stress disorder (PTSD), an extremely debilitating disorder occurring after a highly disturbing traumatic event, such as military combat or violent crime. The study revealed that almost one-third (31%) of all rape victims developed PTSD sometime during their lifetime, and more than one in ten rape victims (11%) still have PTSD. Rape victims were 6.2 times more likely to develop PTSD than women who had never been victims of crime (31% vs 5%).

Rape victims were 5.5 times more likely to have current PTSD than those who had never been victims of crime (11% Vs 2%).

If we talk about rape, apart from other intricate details what comes into prime focus is ‘consent’ – which is absent. So when a rape survivor comes to me, it doesn’t matter whether she is married or unmarried concerning their traumatising experience. Any act of sexual offence without consent is equivalent to rape if we talk in terms of mental trauma. The psychological impact of sexual abuse & trauma associated with the act of marital rape is comparable to that of any rape victim. It requires similar treatment modalities rather somewhat in a more aggressive manner to heal them mentally as the trauma caused to them is by their intimate partners. So as a psychiatrist, for me, a rape victim has no further categorisation based on his/her marital status. We focus on the impact of an event & try to stabilise them on the severity associated with the same which is comparable in all the scenarios & are alike,” says Dr. Ankita Priydarshini, Psychiatrist.

Irrespective of what the law is today and what it may come to be in the future, marriage and everything that comes with it is a consensual relationship between two people. This includes the sexual relationship they share. No doubt the complete denial of a conjugal relationship in marriage amounts to cruelty for which the relief lies in applying for a divorce. But marital rape and the complete denial of sex by the wife throughout the marriage are distinct from each other.

“Marital rape is even worse than rape by a stranger because your attacker is your life partner. He is someone you put all your faith and trust in. Non-consensual sex is the marking of an abusive marriage which will ultimately lead to the breakdown of the marriage. Subsequently, leading to a divorce. Resulting in the very same thing those who oppose criminalisation of marital rape are trying to prevent – the breakdown of the family unit and marriage as an institution. Moreover, if non-consensual sex is considered acceptable within a marriage, it is time we as a society take a hard look at the foundation of the institution itself because, from this point of view, it seems that it is built on the abuse of one partner at the hands of the other,” says Mannat Kahai Singh, Practicing Advocate at Delhi High Court.