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India’s Supreme Court is on the verge of handing down a landmark ruling that could make marital rape a crime, a hotly debated factor that has its roots in colonial law.
India’s Supreme Court is about to consider a landmark ruling that could make it a crime for a husband to rape his wife.
In recent months, the court has heard a number of petitions challenging the current “spousal rape exemption” as a felony rape. Around 150 countries have already criminalized marital rape worldwide.
The act is incredibly prevalent in India: among married seniors aged 18 to 49 who have experienced sexual violence, 83% report their current husband and 13% point to an ex-husband as the perpetrator, according to the latest National Family Health Survey.
Marital rape already has civil remedies in the Protection of Women from Domestic Violence Act of 2005 (PWDVA), under the concept of sexual violence as a form of domestic violence, as well as in matrimonial law, which stops divorce and judicial separation on the grounds of “cruelty. “
However, the provisions of the criminal law on rape provide a particular exception for husbands. Exception 2 in section 375 of the Indian Penal Code states: “Sexual sex or sexual acts committed through a man with his own wife. . . constitute rape. “
One provision (Section 376B of the Indian Penal Code) makes it an offence for a husband to rape his ex-wife and punishes less than in cases of rape.
These provisions are remnants of British colonial law that reflect the English legal norm then in force. While the spousal rape exemption was overturned in England in 1991 by a ruling, India is still grappling with the fallout from the waiver in 2023.
The provisions enshrine in the law the perception of the husband’s “property” over the user of his wife, which is incompatible with India’s constitutional guarantee of the right to life, dignity, equality and non-discrimination on the basis of sex, among others.
In May 2022, a panel of the Delhi High Court issued a judgment split into two judgments: one of them struck down the spousal rape exemption as unconstitutional, and the other upheld the constitutionality of the exemption.
The judicial reasoning on which these conclusions are based contrasts sharply.
Judge Rajiv Shakdher ruled that the spousal rape exception violates the provisions of the Indian Constitution as it leads to “a denial of the physical autonomy and free will of married women, which will have to be rectified. “It further noted that the exoneration of marital rape “suffers from manifest arbitrariness and discrimination in the sense that a crime as heinous as rape is not identified as a misdemeanor in marriage. “
Justice Hari Shankar, for his part, wrote that within a marriage a “simple” technique cannot be adopted. It held that consent is given for sexual intimacy even if there is no will and that the state has no right to interfere in the personal realm of a conjugal relationship.
Their reasoning echoes a much-criticised ruling by the Delhi High Court in 1984, which stated that “the arrival of the constitutional right to the home is wholly inappropriate. It’s like bringing a bull to a china shop. This will turn out to be a ruthless action. “destroyer of the establishment of marriage and all that it stands for.
Much water has flowed under the bridge since the 1990s, when feminist scholars analyzed the public-private dichotomy, drawing attention to how the domestic sphere – which is one of the main sites of inequality for women – remained immune to regulation through laws and policies. that can protect and promote women’s rights.
The concept of privacy in law is a double-edged sword for women. When it relates to individual dignity, physical integrity and sexual autonomy, it can be a tool for women to assert their rights. But when the personal lives of the family circle seek to protect themselves from “outside interference,” the law adds, it can potentially undermine women’s rights, given the gender force dynamics within the family circle.
In a number of cases, the duty of the state has already countered the public-private dichotomy of women’s rights: through the enactment of Section 498A of the Indian Penal Code, which defines and punishes cruelty to a woman through her husband and family members, as well as to the woman. The Domestic Violence Act (PWDVA) of 2005 and the Dowry Prohibition Act of 1961 are clever examples.
They convey a transparent and unequivocal message that the domestic sphere is an arena of legal intervention, as the dynamics of force within the family can be exploited through existing ones to perpetuate violence and discrimination.
In this sense, the patriarchal myth that the house is a space for everyone is broken. Justice Hari Shankar’s observations that the State has no right to interfere in the personal life of a marital person goes against existing legal thinking.
Some critics argue that the spousal rape exemption may simply undermine the establishment of marriage.
The Verma Justice Committee advised removing the spousal rape exemption in its 2013 report on how India’s penal formula could better address sexual violence. However, the parliamentary statute committee on home affairs rejected this recommendation, concluding that if marital rape were criminalized, “the total family circle formula would be under enormous pressure. “
In 2016, the Union’s Minister of Women and Child Development argued that there may not be any law against marital rape because marriage is a “sacrament” and because of issues such as poverty, illiteracy and religious beliefs.
During the Delhi High Court proceedings in 2022, X (formerly Twitter) witnessed a “marriage strike” by men to counter a conceivable measure to remove the spousal rape exemption. These men felt entitled to rape their wives during marriage and were willing to boycott the marriage if the rape license was revoked. The women answered, “May the #GrèveduMariage last for centuries. “
The polarization has focused on the physical autonomy and sexual integrity of married men vis-à-vis their husbands.
Removing the marital rape exemption would create a normative standard of appropriate behavior within marriage, consistent with India’s constitutional guarantee of basic rights.
In addition, my own studies highlight the need for the law to treat the establishment of marriage as one based on mutual love, care, and companionship, rather than coercion and violence. As a logical corollary, the exemption from marital rape generates coercion and violence in the claim to the sanctity of marriage and the merits that must be disposed of by the laws.
Originally published in Creative Commons via 360info™.
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India’s Supreme Court is about to consider a landmark ruling that could make it a crime for a husband to rape his wife.
In recent months, the court has heard a number of petitions challenging the current “spousal rape exemption” as a felony rape. The ruling, which is expected to be handed down in the coming months, could put India on a par with nearly 150 countries that have already criminalized marital rape around the world.
The act is incredibly common in India: among older married people aged 18 to 49 who have experienced sexual violence, 83% report their current husband and 13% point to an ex-husband as the perpetrator, according to the latest National Survey of Family Health.
Marital rape already has civil remedies in the Protection of Women from Domestic Violence Act of 2005 (PWDVA), under the concept of sexual violence as a form of domestic violence, as well as in matrimonial law, which stops divorce and judicial separation on the grounds of “cruelty. “
However, the provisions of the criminal law on rape provide a particular exception for husbands. Exception 2 in section 375 of the Indian Penal Code states: “Sexual sex or sexual acts committed through a man with his own wife. . . constitute rape. “
One provision (Section 376B of the Indian Penal Code) makes it an offence for a husband to rape his ex-wife and punishes less than in cases of rape.
These provisions are remnants of British colonial law that reflect the English legal norm then in force. While the spousal rape exemption was overturned in England in 1991 by a ruling, India is still grappling with the fallout from the waiver in 2023.
The provisions enshrine in law the concept of “ownership” of a husband over his wife, which is incompatible with India’s constitutional guarantee of everyone’s right to life, dignity, equality and non-discrimination on the basis of sex. , among others.
In May 2022, a panel of the Delhi High Court issued a judgment split into two judgments: one of them struck down the spousal rape exemption as unconstitutional, and the other upheld the constitutionality of the exemption.
The judicial reasoning on which these conclusions are based contrasts sharply.
Judge Rajiv Shakdher ruled that the spousal rape exception violates the provisions of the Indian Constitution as it leads to “a denial of the physical autonomy and relaxed will of married women, which will have to be rectified. “It further noted that the exoneration of marital rape “suffers from manifest arbitrariness and discrimination in the sense that a crime as heinous as rape is not identified as a misdemeanor in marriage. “
Justice Hari Shankar, for his part, wrote that within marriage a “simple” technique cannot be adopted. He held that consent is given for sexual intimacy even if there is no will and the state does not have the authority. The right to intrude into the personal sphere of a marital relationship.
Their reasoning echoes a much-criticised ruling by the Delhi High Court in 1984, which stated that “the arrival of the constitutional right to the home is wholly inappropriate. It’s like taking a bull to a china shop. This will turn out to be a ruthless action. “destroyer of the establishment of marriage and all that it stands for.
Much water has flowed under the bridge since the 1990s, when feminist scholars analyzed the public-private dichotomy, drawing attention to how the domestic sphere – which is one of the main sites of inequality for women – remained immune to regulation through laws and policies. that can protect and promote women’s rights.
The concept of privacy in law is a double-edged sword for women. When combined with individual dignity, physical integrity and sexual autonomy, it can be a tool for women to assert their rights. But when the family’s privacy seeks “external” cover, “interference” can potentially infringe on women’s rights, especially given the gender force dynamics within the family.
In several cases, the State’s duty has already countered the public-private dichotomy of women’s rights: by enacting Section 498A of the Indian Penal Code, which defines and punishes cruelty towards a woman through her husband and his relatives, as well as towards women. The Domestic Violence Act (PWDVA) of 2005 and the Dowry Prohibition Act of 1961 are smart examples.
They send a transparent and unequivocal message that the domestic sphere is an arena of legal intervention, as the dynamics of force within the home can be exploited through existing ones to perpetuate violence and discrimination.
In this sense, the patriarchal myth that the home is a space for everyone is shattered. Judge Hari Shankar’s remarks that the state has no right to intrude on the privacy of a marital date run counter to existing legal thinking.
Some critics argue that the spousal rape exemption may simply undermine the establishment of marriage.
The Verma Justice Committee advised removing the spousal rape exemption in its 2013 report on how India’s penal formula could better address sexual violence. However, the parliamentary statute committee on home affairs rejected this recommendation, concluding that if marital rape were criminalized, “the total family circle formula would be under enormous pressure. “
In 2016, the Union’s Minister of Women and Child Development argued that there may not be any law against marital rape because marriage is a “sacrament” and because of issues such as poverty, illiteracy and religious beliefs.
During the Delhi High Court proceedings in 2022, X (formerly Twitter) witnessed a “marriage strike” by men to counter a conceivable measure to remove the spousal rape exemption. These men felt entitled to rape their wives during marriage and were willing to boycott the marriage if the rape license was revoked. The women answered, “May the #GrèveduMariage last for centuries. “
The polarization has focused on the physical autonomy and sexual integrity of married men vis-à-vis their husbands.
The removal of the spousal rape exemption would create a normative norm of appropriate behavior within marriage, consistent with India’s constitutional guarantee of basic rights.
In addition, my own studies underscore the need for the law to treat the establishment of marriage as one based on mutual love, care, and companionship, rather than coercion and violence. As a logical corollary, the spousal rape exemption generates coercion and violence in marriage. call to the sanctity of marriage and to the merits that must be removed from the law.
Originally published in Creative Commons via 360info™.
India’s Supreme Court is about to hand down a landmark ruling that could make it a crime for a husband to rape his wife.
In recent months, the court has heard a batch of petitions that have challenged the current “marital rape exemption” to the criminal offense of rape. The judgment, expected to be handed down in the coming months, may bring India in line with the almost 150 countries that have already criminalized marital rape around the world.