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“Even in a marriage, howsoever elevated we may take the expectation of a sexual relationship, you cannot claim the right to have sexual intercourse with a partner.”
– Justice C Hari Shankar
Is it essential to bring the marital connection under the precise definition of “rape”?
This line of reasoning claims that because rape is a serious crime with long prison sentences, raising the allegation during a marriage conflict would have a significant negative impact.
Every citizen of India enjoys the basic right to equality and the right to life, as stated in the Indian Constitution. This means that every person of our country has the right to a life of equality and dignity, free from discrimination, abuse, or any other type of violation of these rights. However, the essential notion behind these fundamental rights is exploited shamelessly and on a huge scale, especially when it comes to gender-based crimes or minority crimes, due to the predominantly patriarchal confines of Indian marriage laws.
The Delhi High Court is currently hearing final arguments in a series of public interest litigations challenging Section 375 of the IPC “marital rape exception” clause. While the legal nuances of the subject are vast, the social and emotional impact of the subject may be seen in judicial proceedings as well as media conversations, particularly on social media. The fact that the case is in court has prompted a social media debate in India about “men’s rights” and the impact of false accusations on “men and marriage.” The dispute centres on Exception 2 to Section 375 of the Indian Penal Code, which provides that any sexual act conducted by a man on his wife is not raped if the wife is not a minor. This exemption is found in Section 375, which defines different actions as rape if they are carried out against a woman’s permission, by force, deception, or coercion, or on a woman who is incapable of giving consent. Marital rape is a controversial topic that is difficult to quantify anywhere, but especially in India, where the majority of sexual assault is considered to occur within families and remains unreported. According to the latest National Family Health Survey conducted by the Indian government, around 30% of Indian women aged 18 to 49 had suffered domestic abuse. According to a poll of 724,115 women, the average Indian woman is 17 times more likely to experience sexual assault from her spouse than from anybody else. The struggle to make marital rape illegal has been going on for decades, but it gained traction in 2012 after a savage gang rape on a New Delhi bus stunned the globe. Because her name could not be publicly publicized as a victim of sexual abuse under Indian law, the victim, who died of her injuries, became known as “Nirbhaya” – the fearless one. Her case prompted changes to India’s rape laws, including a broader definition of rape and longer prison penalties for those found guilty.
The Indian Penal Code (IPC) continues to specify that a husband is free from prosecution for rape on his wife, subject to the wife’s age. In India, where the husband has ultimate dominance and legal recognition over the rights of the wife, this is a clear example of the present standard being outdated and strongly skewed against women. Sexual intercourse between a man and his wife, if the wife is not under the age of fifteen, is not rape, according to the second exemption of section 375 of the IPC. In addition, the age provision was inserted into the IPC only after several cases of child brides dying as a result of premature intercourse with their husbands. Legal issues should be discussed in addition to the apparent ones of “social discord” and “damage to marriage and family institutions.” The most crucial point before the court is how “consent” can be defined, especially in marriages when there is “implied consent” and “expectation of conjugal sexual interaction.” The justices also pointed out that there is a discrepancy between the “right to have sex” and the “reasonable expectation of sex,” but that the concept of consent within a marital relationship must be taken into account. If someone is married, is there “inherent consent”? The court also voiced concern that the “right to say no” could be considered a part of the fundamental right to privacy and dignity.
The issues are also Articles 14 and 19 of the Constitution are violated by the fact that an unmarried woman can prosecute a man for sexual intercourse while a married woman cannot. The issue of “expectation of a conjugal relationship,” on the other hand, as well as the societal construct of “marriage,” which is founded on implicit physical, sexual, and emotional companionship, must be addressed. There’s also the question of a woman’s autonomy and whether modern democracy can continue to rely on 17th-century legal norms that saw women as “property of the husband,” with no decision-making ability or autonomy.
The Court will also have to decide how to characterize a husband’s rape against his wife. Rape by a “relative” or a “person in a position of power and trust” is now regarded as a far more serious crime, with heavier punishments. Rape of a woman by the same individual on many occasions is also deemed an aggravated offense, carrying a higher penalty than a single event.
If the “marriage exception” is eliminated, the court will have to evaluate whether rape by a husband would also be subject to the stiffer punishments under the law, because proving the offense in a relationship where regular sexual intercourse occurs is more difficult unless there is proof of serious injury. The legal implications of removing the “marriage exception” from other IPC offenses must also be considered by the court. If the victim is one’s wife, might they be charged with “attempted rape” under Section 511 of the IPC? How would evidence of an “attempt” be considered in a relationship where there is a sexual interaction? One point the court has addressed is whether eliminating the “marriage exception” will “create a new offense — i.e., will the court have to define the law surrounding what types of sexual acts or behaviour would be considered “marital rape”? A key premise of Indian law is the separation of powers between the legislative and the judiciary. This means that courts cannot “create legislation” where legislative provisions already exist. The Court will also have to assess the limits of judicial intervention in this case, especially since the federal government has not committed to altering the marriage exemption.
The case of Phulmoni Dasi (also known as Queen-Empress vs. Hari Mohan Maiti) in 1881 was one of the most horrible examples of marital rape. This case deserves special attention because it drew a lot of attention from legislators and the general public. According to the facts, Phulmoni Devi, an eleven-year-old child bride, died of heavy bleeding when her husband, Hari Mohan, in his mid-thirties, attempted to consummate their marriage despite her being eleven years old. Even though the post-mortem report identified a ruptured cervix as the cause of death, the husband was acquitted of rape since the laws on rape excluded marital rape fully from the scope of the criminal code.
Current rape rules allowed a man to have sexual relations with his wife without her consent as long as she was over the age of ten at the time. Concerns about the age of consent for child brides were raised following the case of Phulmoni Dasi. With an amendment to the Age of Consent Act of 1861, the colonial government raised the age of consent from ten to twelve years in both married and extra-marital circumstances, to protect female minors from future immature cohabitation and prostitution. When the Amendment Act of 1925 was passed, a distinction was made between the age of consent for extramarital and marital rape, i.e. fourteen and thirteen years, respectively, even though the significance of this modification was weakened because the sentence for the husband was just two years. Furthermore, the said exception for married women aged fifteen to eighteen persisted until 2018, when the Supreme Court of India issued a landmark ruling declaring that a man commits rape if he engages in any form of sexual intercourse with his wife if she is between the ages of fifteen and eighteen. This was the first time that the legal definition of rape was extended to include a sexual attack on a girl under the age of eighteen by a male, even if he is her husband. This, however, does not provide any protection to any woman over the age of 18 who may be subjected to marital rape by her husband, and such cases are common throughout the country and often go unnoticed or dismissed because no law provides for any type of penalty or punishment for marital rape of a woman over the age of 18. Furthermore, the Verma Committee, which was established on December 23, 2012, in the aftermath of the infamous Nirbhaya case, recognized this feature of marital rape. The previous Chief Justice of the Supreme Court, Justice J.S. Verma, led a three-member committee. The main goal of this group was to propose changes to India’s criminal legislation that would allow for faster trials and harsher punishments for criminals accused of sexual attacks against women. The Verma Committee’s recommendations also included the complete and total criminalization of marital rape, arguing that the right to life encompasses the right to a dignified life for all individuals and that marital rape completely violates this basic right and grossly indignifies the woman. While recommending that marital rape be criminalized, the Committee noted that women in India face frequent incidents of discrimination and violence in the home and at work, and that several special and protective statutes have been enacted to protect women from such unwelcome incidents. Moreover, while criminal penalties have been established for the protection of women, no laws explicitly prohibit a man from raping his legally married wife except in the following circumstances: Any form of sexual activity or sexual act committed by a man with his wife while the wife is under the age of 15, as defined by section 375 of the Indian Penal Code, 1860. Any kind of sexual intercourse between a husband and his wife when they are separated, as defined by section 376B of the Indian Penal Code, 1860. As a result, the state’s reluctance to acknowledge the rights of a wife who is a woman and, more crucially, a living person who deserves to live a dignified and secure existence is reflected in the clear lack of any statute criminalizing marital rape in its entirety. The Indian Constitution protects a number of fundamental rights, including the right to life and the right to privacy, but it fails to recognize that the right to life also includes the right to live a dignified life and that marital rape violates the basic principle that underpins this fundamental right. Currently, the only civil remedies for married women in India against non-consensual sex are civil provisions under the Protection of Women from Domestic Violence Act or Section 498-A of the Indian Penal Code, which deal with cruelty against a wife by a husband or husband’s relatives. Several countries throughout the world are enacting strict anti-marital rape legislation and recognizing it as a criminal offense. Countries such as Denmark, Sweden, Poland, Norway, and the Czech Republic have already criminalized marital rape, while others are still attempting to do so due to the complexities of such a move, as well as the potential negative consequences for marital relationships and the repercussions of wrongful accusations. Most proponents of present marital rape legislation argue that criminalizing the crime will give women an unfair advantage, resulting in a high number of false allegations being filed against males. However, it cannot be argued that India’s current rape statute, which exempts the husband, is completely in violation of Articles 14 and 21 of the Indian Constitution. Marital rape is not only unequal, but it also violates a woman’s right to a dignified existence. When a woman marries, she never relinquishes her fundamental rights. As a result, any law that violates the Constitution’s emphasized clauses must be repealed entirely. In a marriage, “implied consent” cannot be regarded as “irrevocable consent,” and a woman must have the ability to say “No.” There is no justification for elevating the “marital connection” and denying a married woman the right to prosecute her husband, even if she has the right to prosecute everyone else.
Author: Roop Ahluwalia, NMIMS Hyderabad
Editor: Kanishka Vaish, Senior Editor, LexLife India