The split-verdict by the Delhi High Court's (HC) two-judge bench consisting of Justices Rajiv Shakdher and C Hari Shankar on criminalising marital rape on May 11 has highlighted India's long-arduous struggle to provide married women bodily autonomy and respect.
The differential treatment shows the embedded patriarchal values of marriage as an institution in Indian society.
Even after 10 years, when Justice Verma Committee sent its recommendation to remove the exception of marital rape under the Indian Penal Code (IPC), there have been no significant steps taken in that direction.
Modern Idea Of Sexual Consent
In the context of sexual relationships, the term' consent' denotes the presence of any person involved in that relationship to say 'no' to protect their body's integrity against unwanted sexual advances or pressure. In the absence of consent, any sexual behaviour is negatively portrayed and becomes a punishable offence.
As reported by News 18, World Health Organisation defines sexual violence as any sexual act against a person's sexuality using force by any person, irrespective of their relationship with the victim. Sexual violence can include any setting, not limited to work and home.
In the institution of marriage, the practices and rituals surrounding it indicate an imbalance concerning power between husband and wife. Husbands consider their wives as their property. This notion of ownership was a very outdated concept when women were reduced to mere objects without any economic and social independence. Their husbands made their choices, and wives' moral duty was to follow their husbands and serve them unconditionally.
Hence, wives irrevocably had a sexual obligation to fulfil their husband's needs, giving husbands absolute control over their wives bodies.
Justice Verma Committee, set up in 2012 after the Nirbhaya incident in New Delhi, submitted its report regarding sexual assault and rape in 2013. It observed that "rape and sexual assault are not merely crimes of passion but an expression of power," as cited by PRS India.
Criminalising Marital Rape
Justice Hari Shankar recently stated that it is not unconstitutional to treat sexual acts between a husband and wife, regardless of consent, differently from sexual acts between a man and a woman who are not married, as reported by India Today.
In 2016, the then Union Minister for Women and Child Development claimed that marital rape cannot be considered within a marriage due to the mindset of Indian people who believe matrimony is holy, as cited by an older article in India Today.
The recent National Family Health Survey 5 (2019-21) found that 18% of married women in India cannot say 'no' to their husbands if they do not feel like having sexual intercourse with their husbands, as told in an older article of India Today.
Progressive Stance: Justice Verma Committee
The historical shift toward criminalising marital rape came when Justice Verma's Committee suggested that government should abolish the immunity given to marital rape. "Marriage should not be considered an irrevocable consent to sexual acts. Therefore, concerning an inquiry whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant."