'Marital Rape Clause': India's global standing | The Issue

100 years ago, the first country in the world criminalised marital rape. It was the Soviet Union in 1922 and 150 nations followed suit. A brief global timeline of when other nations criminalised marital rape is as follows:

Poland: 1932
Australia: 1976
Canada: 1983
UK: 1991
USA: 1993
South Africa: 1993
Zimbabwe: 2001
Thailand: 2007

In majority of nations marital rape is a crime and punishments range from life imprisonment to 50 years in jail. India has ratified two UN conventions that declare spousal rape as an act of violence against women. However, by virtue of the fact that India did not sign the optional convention which gives UN the powers of persecution against the member states, India cannot be held legally accountable for not complying.

In a legacy passed down by the British colonisers, India shares its criminal code with Pakistan, Bangladesh and Sri Lanka where marital rape is also not a crime. Our rape laws very clearly exempt marital sexual offences provided the wife’s age is above 18. The exemption dates back to the remarks of British judge Sir Matthew Hale in 1736, who said that women are the contractual property of their husbands. This point of view became a part of the English common law that was enforced in all its colonies.

Centuries later, this remark dressed as an exemption continues to impact India’s criminal code.

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One may have the perception that marital rape being punishable is a western notion but look at our neighbourhood. India’s tiny neighbours, Nepal and Bhutan, who share a similar socio-economic fabric as us, have outlawed spousal rape- the only two in the Indian subcontinent. In Nepal, an accused could get between 5-15 years of prison if the charges are proved. Bhutan makes no mention of gender in its rape laws. However, it must be noted the punishment for marital rape is lesser than what is for other sexual crimes.

Recently, a two-bench Delhi High Court delivered a split verdict. On the bench was judge Rajiv Shakdher, who noted that it was a tragedy that even after 162 years, a married woman’s call for justice could not be heard. His co-chair judge Hari Shankar went on to observe that is valid to expect sex from one’s spouse as that is what sets marriage apart from all other relationships.

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In the court, it was the government of India’s unwillingness to take a stand that too made the headlines. While the government’s lawyer claimed that the previous stand opposing the criminalising of marital rape was under review, he at the same time sought time to consult state governments about their stand. Despite the dissenting verdict, Judge Shakdher remarked that all stakeholders need to bite the bullet and come to a decision.

Part 1 - 'Marital Rape Clause': The History
Part 3 - 'Marital Rape Clause': The concept of consent