India remains among the 30-odd nations where marital rape is not criminalised as the Delhi high court split verdict on the issue on Wednesday gave little to cheer about to those fighting against the alleged discriminatory clause under Section 375 of the Indian Penal Code.
According to a United Nation Women report, most of these 34 countries were developing nations including Pakistan, China, Bangladesh, Myanmar, Sri Lanka, Haiti, Laos, Mali, Senegal, Tajikistan and Botswana.
Thirty-two per cent of women in India who have ever been married have experienced spousal physical, sexual, or emotional violence, according to the latest fifth round of the National Family Health Survey (NHFS-5).
It further revealed that 25 per cent of married women in the 18-49 years age group who have experienced spousal physical or sexual violence report having physical injuries, including seven per cent who have had eye injuries, sprains, dislocations, or burns and 6 per cent who have had deep wounds, broken bones, broken teeth, or any other serious injury.
In the case of marital rape, India continues to adhere to the archaic colonial law where unwilling sexual contact between a husband and a wife is not recognised as a criminal offense.
One of the two exceptions provided under the Section 375 of India's Penal Code, the provision which defines all forms of sexual assault involving non-consensual intercourse with a woman as rape, states "sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape".
Activists alleged that this exception gives immunity to men from a punishable offence of rape when committed in a contract of marriage and violates the Constitution.
The Delhi high court on Wednesday delivered a split verdict with one of the judges favouring striking down the provision, and the other holding it was not unconstitutional.
The division bench however granted leave to the parties to file an appeal before the Supreme Court.
In 2017, the Supreme Court did read down the marital rape exception but only to change the age, and held that it should read "the wife not being under eighteen years of age" -- and not 15 -- ensuring that the IPC was in line with the age of consent, which is 18.
The same year, the Centre in its affidavit had opposed the pleas, saying that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing husbands.
A group of petitions had challenged the very constitutionality of the marital rape exception under Section 375 IPC (rape).
Several experts, NGOs and women activists have been arguing against the exception clause for grossly violating married women's rights under Article 14 (Right to Equality) and Article 21 (right to life) of the Constitution.
Even the Justice Verma Committee, formed following the nationwide protests after the 2012 Delhi gang-rape case, had recommended removing the exception clause in Section 375 of the IPC that decriminalises marital rape in its report in 2013.
"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.
"According to the common law of coverture, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent could not be revoked," the committee had said.
However, the recommendation was not part of the Criminal Law (Amendment) Act passed in 2013, and a Parliamentary panel on Home Affairs formed to examine the ordinance before the passage of the law had said, "the entire family system will be under great stress" should marital rape be criminalised.
