The Centre on Thursday told the Supreme Court there was no need to criminalise marital rape as there are other “suitably designed punitive measures”. While this is a longstanding stance of the BJP and its ideological parent, the RSS, most Opposition parties over the years have either argued for criminalisation of marital rape or sought a review of the exception given to it under the law.
The Congress, Left, Trinamool Congress (TMC), DMK, Shiv Sena (UBT), Samajwadi Party (SP), RJD, Bharat Rashtra Samithi (BRS) and Biju Janata Dal (BJD), among others, have from time to time argued for legislation on marital rape as a crime.
On Friday, speaking to The Indian Express, CPI(M) leader Brinda Karat described the government submission in the Supreme Court as “regressive”. “It is retrograde and regressive because it essentially sees a woman’s body as part of a marriage contract in which the husband has full rights over her body. This is essentially what the government’s statement means despite all the ifs and buts it has added to it. It is saying a woman’s body is not her own but her husband’s,” Karat said.
The Congress’s Adhir Ranjan Chowdhury, who had earlier batted for criminalisation of marital rape, was more measured. “The issue is sensitive. It has to be dealt with very comprehensively. Opinions of all stakeholders should be taken so that a comprehensive view can be taken. It is very difficult to differentiate what is marital rape and what is conjugal cohabitation. It is a delicate matter. It should be left to the judiciary to take a call. It needs a wide discussion among all sections of the society. We are a diverse culture,” Chowdhury told The Indian Express.
The statement is a slight departure from the stance that Chowdhury took in his dissent note in the Parliamentary Standing Committee report published last year on the three new criminal laws to replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC) and the Indian Evidence Act.
Flagging deficiencies in the proposed laws, Chowdhury had written, “Despite claiming that the new Bills were drafted keeping in mind the issue of women’s safety, the government continues to exempt acts of marital rape from ambit of rape laws. The recognition of marital rape as an offence has been a longstanding demand from Indian women across the board.”
The stand taken by Chowdhury had been repeated verbatim by other Congress members of the committee, including Rajya Sabha MPs Digvijaya Singh and Ravneet Singh.
TMC Rajya Sabha MP Derek O’Brien had in 2022 even introduced a private member’s Bill seeking to criminalise marital rape. He had argued that any exception to the definition of rape is antithetical to the right to life and liberty, and that all women have the right to lead a safe and dignified life.
In his dissent note in the Parliamentary Standing Committee report on the three criminal laws, O’Brien had said, “The colonial laws did not recognise men and women as equals and merged the identity of women with their husbands. The Bharatiya Sakshya Bill does not make any significant changes to the ‘colonial’ Indian Evidence Act, even though the Law Commission report of 2003 had suggested so many changes in the form of amendment and substitution of provisions.”
In 2015, DMK MP Kanimozhi had raised the issue in the Rajya Sabha. Citing a United Nations Population Fund report, she had said more than 75% of the married women in India were victims of marital rape and that there were no laws in India to deal with the problem.
In the 167th report of the Standing Committee on the Ministry of Home Affairs, which examined the Criminal Law Amendment Bill, 2012, the CPI’s D Raja had said, “Both the Ordinance and the Standing Committee exempt marital rape from being considered a crime under Section 375 of the Indian Penal Code. This is contrary to the provisions of the Indian Constitution, which considers all women as equal human beings who have a right to live with dignity and free from violence within and outside marriage.”
Raja pointed out that this was also contrary to the Verma Committee report, which had pointed out that the “exemption for marital rape stems from a long outdated notion of marriage, which regarded wives as no more than the property of their husbands … whereas marriage is in modern times regarded as a partnership of equals”.
In March 2021, the then undivided NCP’s Rajya MP Vandana Chavan raised the issue of marital rape during Zero Hour in Parliament. Chavan argued that for decades there have been demands from several quarters asking that marital rape be made a criminal offence. “After the lockdown, especially, we have seen that these instances have increased, and, in fact, the seriousness also amplified to a great extent,” she said.
Stating that Parliament had always taken proactive steps towards the protection of women, she said: “… why then are we not treating marital rape as an offence?… The Justice Verma Committee recommended the same. More than a hundred countries in the world have made marital rape an offence and we fall only among the 36 countries that have not.” Chavan also called the government’s argument that it would destabilise the institution of marriage “absurd”.
“When a husband beats his wife or subjects her to mental or physical cruelty, it is an offence. So, if he forcibly sexually abuses her, does this not amount to an offence? So, this is an absurd argument,” she said.
The SP’s Jaya Bachchan, Shiv Sena’s Priyanka Chaturvedi, RJD’s Manoj Jha, Aam Aadmi Party’s Narayan Das Gupta, BRS’s Banda Prakash, DMK’s P Wilson, Congress’s Chhaya Verma, and BJD’s Amar Patnaik, Bhaskar Rao Nekkanti and Sasmit Patra have all been associated with the cause.