On February 22, the Delhi High Court has reserved its judgment in a batch of petitions that have challenged the exception to Section 375 of the Indian Penal Code, which exempts forceful intercourse by a man with his own wife from the offence of rape.
While the battle in the courtroom is on, the National Family Health Survey (NFHS-5) shows that the discord of marital rape has been gender-neutral in Odisha.
Gender Unity On No Entry
As per the NFHS-5 survey that was released earlier this year, a massive 83 percent of women and 70 percent of men are of the opinion that a woman is justified in refusing to have sex with her husband if she knows he has a sexually transmitted disease (STD) or has a promiscuous behaviour or if she is tired or not in the mood.
The NFHS-5 survey has further added that a whopping 79 percent of men agree that if a wife refuses to have sex with her husband he has no right to get angry on/reprimand her or refuse financial support or use force or go for extra-marital relations.
There is an overwhelming opinion against marital rapes in Odisha. Even rural Odisha looks more progressive than their urban counterpart.
The survey finds that over 71 percent of rural men agree that a wife has every right to refuse sex with her husband for any of the reasons specified above. On the contrary, the proportion in urban Odisha stands notches down at 64 percent.
While urban males in Odisha are less progressive than their rural counterparts, urban women seem more assertive about their sexual rights vis-a-vis their rural counterparts.
The survey says that when nearly 88 percent of urban women think they have every right to refuse sex with the husband for the reasons given above, the proportion in rural Odisha stands at 81 percent.
Judiciary On Marital Rape
As per Nimeshbhai Bharatbhai Desai vs State Of Gujarat on 2 April, 2018, marital rape has been classified into
- Battering rape: In this type of marital rape, women experience both physical and sexual violence in the relationship and in many ways.
- Force Only Rape: In this type of marital rape, husbands use only that amount of force, as it is necessary to coerce their wives. In such cases, battering may not be a characteristic.
- Obsessive rape: where assaults involve brutal torture and/or perverse sexual acts and are most commonly violent in form.
As per the judgement order of Justice JB Pardiwala, a husband cannot be prosecuted for the offence of rape punishable under section 376 at the instance of his wife, as marital rape is not covered under section 376 of IPC. But a wife can initiate proceedings against her husband for unnatural sex under section 377 of the IPC.
The judgement said section 377 of IPC does not criminalize a particular class of people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offence.
And consent is not a determining criterion in the case of unnatural offences and rather any offence which is against the order of nature and can be described as an offence under section 377 of the IPC.
Justice Verma Committee
As per the views expressed by the Committee on Amendments to Criminal Law chaired by Justice J.S. Verma (Retired), it was stated that the outdated notion that a wife is no more than a subservient chattel of her husband has since been given up in the United Kingdom.
The Commission has also made a reference to a decision of the European Commission of Human Rights which endorsed the conclusion that “a rapist remains a rapist regardless of his relationship with the victim.”