There's an exception in IPC Section 375 (offence of rape) that doesn't recognise sex without consent, with a wife older than 15 years, as rape. The Delhi High Court is currently examining this law and considering PILs opposing marital rape filed by NGOs RIT Foundation, All India Democratic Women's Association (AIPWA), as well as two individuals.

As of Wednesday, the Delhi HC has allowed an intervention application filed by Forum to Engage Men (FEM) – a group of men fighting for gender equality, and against marital rape. Thus, FEM is now a co-petitioner in the case

While many progressive voices fight to establish marital rape as an offence, the Indian government has taken an altogether more medieval position.

On Monday, the central government made its understanding of marital rape known. In its affidavit to the Delhi HC, the government stated that what “may appear to be marital rape [to the wife] may not appear so to others”.

The centre further commented that a marital rape law “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”, adding, “As to what constitutes marital rape and what would constitute marital non-rape needs to be defined precisely before a view on its criminalisation is taken.”

Marriage = mutual respect

Understandably, the government's stance has raised the hackles of the various parties fighting for the recognition of marital rape as a criminal offence.

FEM’s application, filed by Abhijit Das, reads, “We believe that in Indian society, a wife will only bring about such a complaint [of marital rape] against her husband when there is actual non-consent and she is desperate.”

'Even if one woman faces violence, there needs to be a law to protect her'

Catch spoke to Das, and he explained that FEM's “basic contention is that gender equality is a joint aspiration for men and women, and not a women's issue alone. We've been working with men for 10 years now.”

Refuting the argument that this law will be widely misused, Das says, “Basically we're saying that marriage as an institution is threatened because men are frightened their wives will call 'rape' every time they want to have sex. So what are you treating women as?”

“What we are going to affirm is that marriage [in India] is a relationship of equality between a man and a woman, and it is predicated on mutual respect. Yes, sex is an important part of marriage, but that important part, for pleasure or procreation, is a negotiated agreement between two people,” he adds.

On being asked about men's rights activists, like the Men's Welfare Trust, who are opposing their petition, Das says, “There are men who are threatened about their privileges, people ask us if we engage with them. We want to create a general understanding in people about gender equality, [and if] somebody is against gender equality, what can we do?

“Studies show that up to 10% women face sexual violence in marriage. And 30% face domestic violence. That's about 100 million women in India alone. Even if one woman faces violence, there needs to be a law to protect her.”

An affront to all women

The secretary of one of the petitioners, AIPWA, Kavita Krishnan told Catch that the government's stand on marital rape “is an affront to all women”.

The affidavit, Krishnan says, “suggests that 'what a wife may perceive as rape' may not be perceived as such by others. Rape - whether within or without marriage is immaterial, is a violation of a woman's consent.”

'Justice Verma Committee also recommended scrapping of the marital exception'

“The Govt, instead of seeing rape as a violation of consent, suggests that patriarchal social perception must decide whether or not rape is rape! So the notion that a wife is a husband's sexual property and her consent is immaterial, is one that a government is actually backing! I'd like to remind that the Justice Verma Committee also recommended scrapping of the marital exception,” she added.

Interestingly, a day after the Centre's affidavit to Delhi HC was released to the media, Supreme Court lawyer and former Mizoram governor Swaraj Kaushal took to Twitter to announce that there's no such thing as marital rape.

“There will be more husbands in the jail, than in the house,” the senior lawyer, who is married to External Affairs minister Sushma Swaraj, wrote.

On being questioned for his remark on Twitter, Swaraj Kaushal added, “There is nothing like marital rape. Our homes should not become police stations.”

The State's responsibility

Advocate Karuna Nundy, who is leading the arguments for the petitioners demanding a marital rape law, couldn't comment on the matter as it is sub-judice.

However, her written submission to the court concludes with a strongly worded comment on how the State must act now to protect victims of marital rape, and provide them the fundamental right to dignity.

Lack of a law 'delegates married women to the status of legal objects'

“By refusing to recognise and criminalise rape within marriage the State continues to violate the dignity and liberty to millions of married rape victims, guaranteed to them as a basic fundamental right under the Constitution,” it reads.

It further says that the lack of a law “delegates married women to the status of legal objects and second class citizens by nullifying their right to withhold or to give consent to sexual intercourse with the husband.”

On the issue of women being seen as property, it says, “The history of gender equality has been a move against that, towards the full recognition of women’s independent personality. The marital rape provision is the last vestige of the paterfamilias idea.”