Madhavi Rajadhyaksha, TNN Dec 4, 2012, 10.26PM IST


MUMBAI: A case in a Delhi court this week has put the spotlight on a crucial lacuna in the criminal justice system in India. Marital rape is not recognised under the Indian Penal Code.

The missing link was highlighted yet again in a case where a Delhi court acquitted a man of charges of raping his wife on the premise that having sexual relations with a spouse, even if forcibly, did not amount to ‘marital rape‘. India has taken some significant steps in fighting marital violence in recent years, but criminal recognition for forced sex in marriages is still long over due. The first positive step was taken when the Domestic Violence Act, 2005 was passed wherein a woman could file a civil case for separation from her spouse.

Section 376 (A) deals with marital rape only when it is with regard to judicially separated partners. It takes humungous effort for a victim of rape to lodge a complaint, especially within a marriage and the offence is believed to be widely under-reported in any case. Such cases suffer due to the lack of awareness in many quarters that forced sex under any circumstances is a violation. The patriarchal culture of Indian society often works to further detriment to invalidate such claims. For those who muster the courage, it would help if the system was a little more sensitised and the offence didn’t fall in a legal vacuum. Currently, victims can lodge a complaint of marital discord or domestic violence.

Over 104 countries have laws to protect victims against marital rape according to the United Nations and it is perhaps time India at least recognise the offence as a crime in its penal code. It remains to be seen whether the amendment to the criminal procedure code which is currently underway offers any true respite in this matter. Criminalisation is after all only the first step to justice. We still have a long way to go to address further issues of counselling, rehabilitation and shelter to such victims. Unwanted pregnancies arising out of such rapes too need addressing.