Ex-CJI Dipak Misra on Marital Rape

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In a survey conducted by International Centre for Research on Women (2011) nearly 20% of Indian men reported at least once having carried out sexual violence against a female partner. In another study by National Health and Family Survey (NFHS-4) for the year 2015-16, 5.6% women have been reported as victims under the category of “physically forced her to have sexual intercourse with him even when she did not want to”.

It is pertinent to mention that in the aftermath of the Jyoti Singh gangrape in 2012, Justice Verma Committee was constituted with an objective to strengthen the anti-rape laws in the country. The Committee strongly recommended that the exception for marital rape be removed. The Committee added that: “The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.” The Committee also highlighted the recommendations made by the CEDAW Committee in respect of India in 2007 which asked for “widening the definition of rape to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape”. However, though the majority of recommendation of the Verma Committee was incorporated, the suggestion to criminalise marital rape failed to find a place in the Criminal Law Amendment Act 2013.

The recent judgment by the Gujarat high court in Nimeshbhai Bharatbhai Desai vs State of Gujarat(2017) elaborately dealt with the issue of marital rape, and stated that, “making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape”; however, due to non-recognition of marital rape as a crime under the Indian legal framework, the court held that the husband is liable only for outraging her modesty and unnatural sex. Similarly, the apex court in Independent Thought vs Union of India and Anr (2017) has criminalised sexual intercourse with a minor wife aged between 15 and 18 years, but has refrained from making any observation regarding the marital rape of a woman who is above 18 years of age.

According to Morton Hunt, an American psychologist who is considered one of the first to engage with the issue of marital rape, “the typical marital rapist is a man who still believes that husbands are supposed to “rule” their wives. This extends, he feels, to sexual matters: when he wants her, she should be glad, or at least willing, if she is not, he has the right to force her. But in forcing her, he gains far more than a few minutes of sexual pleasure. He humbles her and reasserts, in the most emotionally powerful way possible, that he is the ruler and she is the subject.”

While Ex-CJI Dipak Misra answering the question by a student who had asked whether rape laws in India should be amended, and made gender neutral and if marital rape should be considered as an offence “Our country is sustaining because of the family platform. We still have family values, we still respect the family background and many other facets,” as reported in The Times of India.

He further said that the notion of criminalising marital rape as an idea borrowed from other nations, which cannot be applicable to India, reported Deccan Herald.

As prescribed under the Section 375 of the Indian Penal Code, forced sexual intercourse by a man with his own wife, who is not under 18 years of age, does not count as rape.

Lawyers have previously argued that the marital rape exception violated Articles 14 (equal protection of law), 15(1) (non-discrimination on grounds of sex) and 21 (right to life) of the Constitution.


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