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Consent/Crime: About time courts criminalise marital rape

Written by corres2

As the Delhi high court hears a clutch of petitions on overturning the marital rape exception in rape law, the judge asked why the legal response should be different for a married woman and a sex worker. He was questioning the argument that consent is hard to prove in specific instances where there is already a sexual relationship between the partners. It should be self-evident that all women, whether sex workers or other workers, married or unmarried, are the sole owners of their own bodies. To have sex with them, their consent must be established. Rape is a violation of a woman’s autonomy, and marriage does not make her consent irrelevant.

Arguments about how deleting the marital rape exception will destabilise families actually only degrade the institution, cast it as a torture chamber. Also, as the court noted, all laws can be potentially misused. We only see hand-wringing about laws that challenge social power. Most progressive legal systems now acknowledge that spousal rape is a crime. India is an exception, treating it on a par with domestic abuse and providing civil remedies. While marital rape is prosecuted in different ways, there is no justification for not legally recognising the crime – in fact, the high hurdles for proof and the social bias are all the more reasons to do so. If a woman is seen as a citizen, there can be no ambiguity about seeing marital rape as rape.


This piece appeared as an editorial opinion in the print edition of The Times of India.


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