Congress MP (Member of Parliament) from Tiruvananthpuram Shashi Tharoor on January 2, introduced a private member bill, titled "Women’s Sexual, Reproductive and Menstrual Rights Bill 2018" in Lok Sabha to make marital rape a crime.

Presently “marital rape” is legal in India. It is protected by exception (2) of Article 375 which deals with rape. The exception says “sexual intercourse by a man with his own wife not being under 15 years of age is not a rape”.

The campaign for marital rape gained impetus when in August 2017 Delhi High Court agreed to examine a clutch of petitions filed by RIT foundation, All India Democratic Women’s Association and A man and a women.

The union government following which submitted in Delhi High Court that “Such a provision (marital rape) would endanger the institution of marriage and could be used to harass the husbands”.

Besides, several Men’s organisation claim that there is growing evidence of the misuse of two laws; The dowry law and Domestic violence act of 2005 . They say these laws have been used by married women to file lawsuit against their husbands and family to extort money.

After nearly a year of hearing, a bench of acting chief justice and C Hari Shankar in July 2018, observed that “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”.

The word ‘immunity’ in persecution for rape in marriage was introduced by Sir Matthew Hale, regarded as one of the greatest scholars in the history of English common law and famous for his treaties.

Hale wrote in one of his treaties “The husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract”.

India common law being adoption of British common law system, adopted the Matthew Hale consent theory thus the law came and stayed with it.

A 2014 study based on Government data suggests Acts of sexual violence by husbands were 40 times greater than those committed by non-intimate partners.

In 2016, the then head of United Nations Development Programs (UNDP) had reprimanded saying “India’s failure to change its stance on the issue (marital rape) left it at odds with its sustainable developmental goals (SDGS)”. SDGs adopted by the United Nations require members to achieve gender equality and empower all women and girls.

On the global front, 2.6 million women live in countries where marital rape is illegal. An The Indian Express report of August, 2017 brings-out that according to UN’s women 2011 report out of 179 countries for which data was available 52 had amended their legislation to explicitly make marital rape as a criminal offence.