India: Is it time to declare marital rape a crime?

Last week, a two-judge bench of the Delhi High Court delivered a split verdict on petitions seeking to criminalize marital rape in India, in a setback for women's rights groups that have long campaigned for its criminalization.

While one judge struck down Section 375 of the Indian Penal Code, which says a man cannot be prosecuted for rape within marriage, the other judge disagreed and upheld the provision.

Favoring criminalization, Justice Rajiv Shakdher said the section violated Article 14 of the Indian constitution — which guarantees equality before the law — and therefore should be struck down.

"The right to withdraw consent at any given point in time forms the core of the woman's right to life and liberty," he said in his order.

Justice Hari Shankar, however, disagreed and said the provision does not violate any law and the exception was "reasonable" and could continue.

The case is now expected to be appealed in the Supreme Court.

How did women's rights organizations react?

The split judgment drew widespread criticism from women's rights organizations.

"The judge is saying that even if the husband has sex with the wife without the latter's consent, he cannot he considered her rapist since this would call into question the sacred nature of the marriage institution. This is bizarre reasoning," Kavita Krishnan of the All-India Progressive Women's Association told DW.

"Does a woman have to surrender her dignity and bodily autonomy when she marries? Does she become the property of her husband? This judgment, while not surprising, is nevertheless shameful," she added.

Priya Kumari, a lawyer, shares a similar view.

"To think that criminalizing the provision would be misused and sabotage the institution of marriage, is outdated and flawed," she told DW.

Mariam Dhawale, national general secretary of the All India Democratic Women's Association (AIDWA) and one of the petitioners in the case, said she was dejected with the split verdict.

"We will appeal against the marital rape exemption, an archaic law which came into being 160 years ago," Dhawale told DW.

Opposition from government and religious groups

The verdict has highlighted the public divide on an issue that involves not just the letter of the law but complex social customs.

During the hearings in court, both the Delhi government and Prime Minister Narendra Modi's federal government argued that marital rape could not be criminalized unless there is societal consensus on the issue.

The government said criminalization could have a "destabilizing effect on the institution of marriage."

Religious groups and men's rights activists have also opposed the petitions, saying it could be misused to harass men by leveling frivolous charges.

What do men's rights groups say?

"Clearly, a binary and monochromatic approach to such a complex issue does grave injustice," J Sai Deepak, a lawyer representing Men Welfare Trust, one of the NGOs opposing the criminalization, told DW.

"Critically, it is evident from a reading of both opinions that there is need for greater empirical data on the subject, in addition to collection of inputs from a wide array of stakeholders," he added.

"To my mind, the legislature, and not a court of law, is best suited to undertake such an exercise."

Men Welfare Trust is a Delhi-based NGO, comprising a team of volunteers, focused on dealing with issues such as the victimization of men and their families due to misuse of gender-based laws.

"This is not the concern of the court. All stakeholders must be consulted and if this was criminalized it would have set a wrong precedent," a MWT member said.

Verdict reveals 'a patriarchal mindset'

Marital rape is a crime in most countries worldwide but India remains among the 30-odd nations where it is not criminalized.

Since it is not a crime, the National Crime Records Bureau does not maintain any separate statistics on marital rape.

However, more than 30% of women in India who have ever been married, have experienced spousal physical, sexual, or emotional violence, according to the latest round of the National Family Health Survey.

"The verdict reveals just one glaring fact and that is the patriarchal mindset," women's rights activist Ritu Kaushik said. "Talking of women's empowerment or rights is all a sham when this is the thinking that prevails."