The question whether marital rape should be treated as a criminal offence has once again arisen after Union Minister for Women and Child Development Maneka Gandhi repeated the government’s stand in a written reply in Parliament. She said, “The concept of marital rape as understood internationally cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs [and the] mindset of the society to treat the marriage as a sacrament.” This controversial formulation must be familiar to those calling for marital rape to be criminalised and those opposing it on the ground that it would >ruin the institution of marriage . The argument that there is too little education and too many customs and beliefs in Indian society is often held up to stall legal reforms. The principal objection to the criminalisation of rape within a subsisting marriage is rooted in western tradition too. It originates in the common law principle of marriage as ‘coverture’, the idea that the woman is always under the husband’s protection and authority. In England, Matthew Hale’s 1736 dictum that a man can never be guilty of raping his lawful wife, “for by their mutual matrimonial consent and contract, the wife hath given herself up in this kind unto her husband which she cannot retract”, has been abandoned in progressive jurisdictions.
The >Justice J.S. Verma committee, which recommended sweeping changes in the law relating to offences against women, called for marital rape to be made an offence . This was not implemented. The present Indian law exempts non-consensual sex between a husband and wife, not being less than 15 years of age, from being charged with rape. However, by another provision it makes rape of a wife who is living separately a criminal offence. The age limit of 15 years above which marital rape is not an offence is inherently problematic, as normally sex with a girl up to the age of 18 is an offence regardless of consent. The exemption given to marital rape, as Justice Verma noted, “stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands”. Marital rape ought to be a crime and not a concept. Of course, there will be objections such as a perceived threat to the integrity of the marital union and the possibility of misuse of the penal provisions. It is not really true that the private or domestic domain has always been outside the purview of law. The law against domestic violence already covers both physical and sexual abuse as grounds for the legal system to intervene. It is difficult to argue that a complaint of marital rape will ruin a marriage, while a complaint of domestic violence against a spouse will not. It has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.