Marital rape is a reality that women (and in some cases, men) have been living with, but it is a crime with no punishment. The laws of our nation do not even recognise the agency a woman has over her own body after her marriage.
Let's start at the beginning and discuss a particular case. A woman moved the Supreme Court against her husband for forcing her to perform oral sex acts on him. The woman's counsel, Arpana Bhat, said, "Her husband was incapable of comprehending her objection. The husband, aside from his insistence on oral sex, which was unnatural in the perception of the woman, persisted with her to allow video recording of their physical encounters. She was compelled to put up with the depraved demands, which were often accompanied by threats and physical abuse."
However, the Gujarat High Court rejected her plea under Section 375 (that is for rape) as it does not cover marital rape and also rejected the arguments that the allegations constituted an offence under Section 377. Basically, Gujarat High Court provided no relief to the woman for having her privacy and body violated.
At a time when the Supreme Court has reserved its judgement of Section 377 that criminalises all 'unnatural' sex acts, including homosexuality, the fact that a woman had to file a complaint under the same section is disheartening. Even worse is that her plea for rape was denied and this clear case of marital molestation is, due to lack of its criminalisation, wasn't acknowledged.
The Supreme Court may deliver the justice she's seeking. The Supreme Court had said in another case, "The moment we are convinced that there is a violation of fundamental rights, we cannot leave anything to the legislature. The whole object of the fundamental rights chapter is to strike down laws that violate fundamental rights which majoritarian governments may find difficult to do because of vote bank concerns etc. If the court finds the violation of fundamental rights, we don’t wait for majoritarian governments to act."
Had there been a section recognising marital rape as a criminal offence, it would have been an open and shut case as the man would have to prove that the woman was consenting at the time of intercourse.
Thankfully, the Delhi High Court has finally taken a step in the right direction. While hearing petitions on making marital rape a crime, the HC observed that physical force was not necessary for rape as a man could place his wife under duress by putting financial constraints on her. In a commendable statement, the bench observed, "Marriage does not mean that the woman is all time ready, willing and consenting (for establishing physical relations). The man will have to prove that she was a consenting party."
Maybe taking a cue from Delhi High Court's book, the lawmakers will consider making marital rape a crime since it basically violates every victim's right to equality, freedom and to live life with dignity and places men in a position of power over their wives, giving them a special status in the eyes of law. It's time the government recognised the agency a woman has over her body, married or otherwise. Till then, many women, victims at the hands of the men they trusted the most, will have to move from one court to another, seeking justice for violations of their bodies and minds.