Forensic justice for marital rape victims in India: deconstructing patriarchal walls through criminal jurisprudence

“Women would tell me about being raped and I had to sit there and think as a lawyer, ‘Yes, but were they married?’ If (yes,) …I had no options to help them...” These words uttered by Sarah Lerner, London-based lawyer in 1970s, felt foreign to lawyers after spousal rape criminalization in UK (1991) and several other countries including Australia (1976), Canada (1983), South Africa (1993), and USA (1993). However, Lerner’s words are still everyday reality for Indian lawyers who continue to struggle with explaining marital rape victims as to why a country supporting abortion rights to guarantee female autonomy, pulls back on this guarantee as soon as demand of criminalizing marital rape is put forth. Duality of such partial guarantee of female autonomy raises following questions – Why does marital rape still exist without criminal justice recourse in India? Whether arguments against its criminalization are legitimate? Paper explores Indian criminal jurisprudence around marital rape, along with need, relevance, and practicality of criminalization of spousal rape in India, while examining sufficiency of available civil remedies. Further, considering difficulty of proving absence of consent in marital rape cases, paper focuses on kind of forensic evidences that can be used to aid complainants’ claims in such cases, and discusses admissibility and evidentiary value of such forensic evidence. Consequently, paper analyses onus of proof in cases of marital rape, and the need for acknowledgement that a husband can commit rape on his wife, express consent, and proposing introduction of marital rape as a ground for divorce.