Marital Rape: A justification to rape?

Reading time : 8 minutes

“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.

Also read: ALTERNATIVE DISPUTE RESOLUTION AND ITS SIGNIFICANCE

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

Advertisement

LEGALITY OF MARITAL RAPE

Reading time : 6 minutes

ABSTRACT

Despite the fact that marital rape has received increased attention in recent decades, there is still a scarcity of literature on the subject. This article examines the current state of marital rape studies in detail. First, the long history of legal, cultural, and professional invalidation of marital rape victims is reviewed, as well as the unfavorable therapeutic ramifications. Second, studies on marital rape are analyzed, including prevalence, descriptive, and comparison studies. The severity of marital rape in terms of prevalence and post-trauma pain is highlighted in this review, as well as the limitations of existing studies

INTRODUCTION

According to existing law on marital rape, the wife over the age of 15 is presumed to have given her agreement to any sexual conduct by her husband after entering into marital relations, which can never be sanctioned when the husband pushes himself upon her.

 If the wife is between the ages of 12 and 15, the husband can be charged with marital rape, which is punishable by prison for up to 2 years or a fine, or both; if the wife is under the age of 12, the offence is punishable by imprisonment of either description for a term not or less 7 years but which may extend to life or for a term extending to life rape of a judicially separated wife, a crime punishable by imprisonment for up to 10 years and a fine; rape of a judicially separated wife, an offence punishable by imprisonment for up to 2 years and a fine. However, Section 375 of the Indian penal code has a dual purpose: on the one hand, it criminalises marital rape; on the other hand, it restricts marital rape to women under the age of 15, allowing husbands to inflict physical and mental cruelty on their wives after that age.

Marital rape is not considered a crime under the Protection of Women from Domestic Violence Act of 2005, and women can ask for judicial separation from their husbands under the act. The marital rape exception in our laws infringes on Article 21’s essential rights of bodily integrity, bodily self-determination, right to good health, and right to privacy. Furthermore, because the current law does not offer them legal or social support to protect against marital rape, such bad legislation discourages spouses and prosecutors from speaking out against it.

 Lack of social, judicial, and economic support, as well as men not considering women on an equal footing and subsequently dominating their wives, are all factors that contribute to marital rape. Many women are stepping out now, becoming financially independent, but their lack of legal and social support discourages them from filing a complaint or bringing such situations to court.

LEGAL ISSUE

In another case, a Chhattisgarh High Court bench decided that “sexual intercourse or any sexual act with her by the husband would not constitute an offense of rape, even if it was forced or against her will.” As a result, the charge brought against the applicant’s husband under Section 376 of the IPC is erroneous and illegal.” Even though both judgments were issued in distinct jurisdictions, one in civil court and the other in criminal court, the Kerala high court supported the wife’s autonomy.

 The judge’s decision is an obiter dictum, in which the court states that because autonomy is now regarded as a part of privacy and is embedded as a fundamental right, why is marital rape, which breaches one’s bodily integrity and individual autonomy, still not sanctioned under Indian law? As a result, the legal rationale and current laws are inherently contradictory. In the past, the judiciary has refused an appeal to criminalise marital rape for women under the age of 15, stating that parliament will take up the issue and make a decision.

Later, the government argued that sanctioning it would jeopardise the institution of marriage’s integrity and that marriage should be protected. Is a marriage between two people protected when one of them loses his or her right to privacy, individual autonomy, and bodily integrity, which is a fundamental right under Article 21?

The bench in the case of State of Maharashtra v. Madhukar Narayan[1] held that every woman has a right to sexual privacy, and it is not permissible for anyone to violate that privacy whenever he wishes or pleases. As a result, the central government and judiciary must reconcile their reasoning and the law, providing justice to marital rape victims.

It is irrational to only punish marital rape for women under the age of 15 because, after that age, a woman loses her right to privacy, good health, and bodily integrity. In the name of safeguarding marriage, India’s current rape laws penalize and protect women from any form of rape other than marital rape. Is it a rape remedy to force victims to marry their rapists, and if not, why are wives forced to endure such brutal physical and sexual cruelty? It is irrational to only punish marital rape for women under the age of 15 because, after that age, a woman loses her right to privacy, good health, and bodily integrity.

In the name of safeguarding marriage, India’s current rape laws penalize and protect women from any form of rape other than marital rape. Is it a rape remedy to force victims to marry their rapists, and if not, why are wives forced to endure such brutal physical and sexual cruelty? According to a Kerala high court decision, marital rape is considered physical and emotional cruelty, but it is not confined to cruelty because it also violates a fundamental right. As a result, rape by a husband must be treated as seriously as rape by a stranger. As a result, it should be treated as a crime, with the spouse facing propositional punishment.

Also read: Marital Rape: A Question of Sexual Autonomy of Married Women

FUNDAMENTALS OF AMENDING SECTION 375

The addition of exception ii to section 375 will broaden the reach of martial law, raise public awareness, and deter many husbands from raping their wives by approving marital rape. Because there is no legal protection against marital rape under current legislation, it violates Article 14 of the wives’ constitution. Because section 375, exception ii, does not fall under the definition of “just, fair, and reasonable,” it is unconstitutional and must be abolished. Changing the legislation will not eliminate marital rape, but it will raise public knowledge about the issue, protect women’s autonomy and right to privacy, and encourage people to openly discuss such topics.

A law does not eliminate anomalies from society, but it does provide protection against immorality and injustice, therefore penalizing marital rape will provide hope for ending unfairness that has existed since the dawn of civilization.

Article 14 of the Indian Constitution states, “The State shall not refuse to any individual within the jurisdiction of India equality under the law or equal protection.” Even though the Indian Constitution guarantees everyone’s equality, Indian criminal law discriminates against women who have been raped by their husbands.

When the IPC was founded in the 1860s, a married woman was not considered an independent legal entity. Rather, she was seen as her husband’s property. As a result, she lacked many of the rights that come with being an independent legal entity, such as the ability to bring a lawsuit against someone else under her name. The origins of this philosophy can be traced back to Victorian-era British colonial rule. During the nineteenth century, India was a British colony.

However, the times have changed. Husbands and wives now have separate and independent legal identities under India. All Indian laws were strongly influenced by English laws and Victorian conventions during this time period. The marital exemption in the IPC was drafted based on Victorian patriarchal norms that did not see men and women as equals, did not enable married women to own property, and did not recognize men and women as equals. blended husband and wife identities under the “Doctrine of Coverture.” law, and much current jurisprudence is particularly focused on women’s protection.

This concern is reflected in the multiplicity of statutes enacted since the turn of the century to protect women from violence and harassment, such as “The Protection of Women from Domestic Violence Act” and “Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act.”

VIOLATION OF ARTICLES 14 & 21 OF THE INDIAN CONSTITUTION

Insofar as it discriminates against married women by denying them equal protection from rape and sexual harassment, Exception 2 violates Article 14’s right to equality. The Exception splits women into two types based upon their marital status, and it prevents men from serious offenses against their wives. As a result of the Exception, married women can be victimised solely due to various their marital statuses, but unmarried women are protected.

The distinction made between married and unmarried women in Exception 2 also violates Article 14 because the categorization produced has no reasonable relationship to the statute’s underlying aim. The Supreme Court stated in Budhan Choudhary v. State of Bihar[2]and State of West Bengal v. Anwar Ali Sarkar, that any classification made under Article 14 of the Indian Constitution is subject to a reasonableness test that can only be passed if the classification is rationally related to the goal of the act. Exception 2, on the other hand, undermines Section 375’s goal of protecting women and punishing those who commit rape. That purpose is undermined by exempting husbands from the punishment.

In recent years, courts have come to recognize that these broader rights to life and personal liberty include a right to abstain from sexual intercourse and to be free of unwanted sexual behaviour. The Supreme Court ruled in The State of Karnataka v. Krishnappa[3] that “sexual violence, apart from being a demeaning act, is an unlawful breach of a female’s right to privacy and sanctity.” Non-consensual sexual intercourse is considered physical and sexual violence, according to the same ruling. In Suchita Srivastava v. Chandigarh Administration[4], the Supreme Court linked the right to choose a sexual activity with the rights to individual liberty, dignity, morality, and bodily integrity under Article 21 of the Constitution.

In recent years, the Supreme Court has acknowledged a right to choose intimate partnerships in Article 21. In Justice K.S. Puttuswamy (Retd.) v. Union of India[5], the Supreme Court determined the right to privacy and the right of all citizens, holding that it includes “decisional confidentiality represented by an ability to make intimate decisions having additional of one’s sexual or conjugal nature and decisions in respect of intimate relations.” Forcible sexual cohabitation is a violation of that fundamental right. There is no disparity between the rights of marital and unmarried women in the preceding decisions, and there is no opposite finding stating that a marital relationship curtails a person’s right to privacy.

Exception 2 also infringes on Article 21’s right to a healthy and dignified life. As previously stated, the “right to life” envisioned in Article 21 is more than just a right to exist. For example, there is no question that every Indian citizen has a right to housing and that the administration is accountable for its residents’ health. Courts have repeatedly held that the “right to life” encompasses the right to live in dignity. Exception 2, on either hand, fails to deter husbands from engaging in acts of forced sexual intercourse with their wives, harming women’s physical and mental well-being as well as their capacity to work.

The concept of the right to life under Article 21 of the Constitution was stressed in the case of Francis Coralie Muin v. Union Territory of Delhi[6] In this case, Article 21 encompasses the right to live with human dignity and all that entails, to be specific, the necessities of life, such as adequate nutrition, clothing, and shelter over one’s head, as well as facilities for reading, writing, and expressing oneself in various forms, as well as the freedom to move about and mix and mingle with other people. The right to live with human dignity is one of the most basic components of the right to life, as it determines a person’s independence.

CONCLUSION

Even though the Constitution does not directly mention it, the right to significant self-assurance can also fall under the scope of Article 21. Such a right exists in the larger system of the right to life and personal liberty. The right to self-assurance is founded on the idea that the individual is the last authority in matters involving her or his body or money, and that the more private the decision, the more powerful the person’s privilege. They will be the primary architects of his fate, which will determine his reality. A lady’s sexual relationship is a standout amongst the most personal decisions she makes.

Rape in the bedroom is not completely outlawed in India. It is undeniably a genuine type of female mistreatment that requires the authorities’ attention. Because the consequences of marital rape are so severe, it is clear that criminalising the crime of marital rape is urgently needed. the state that previously valued non-interference in family circles.

---

[1] State of Maharashtra v. Madhukar Narayan AIR 1991 SC 207.

[2] Budhan Choudhary v. State of Bihar, 1955 SCR (1)1045.

[3] State of Karnataka v. Krishnappa, 2000 CriLJ 1793.

[4] In Suchita Srivastava v. Chandigarh Administration,. (2009) 9 SCC 1.

[5] Justice K.S. Puttuswamy (Retd.) v. Union of India, Writ Petition Civil No. 494 of 2012.

[6] Francis Coralie Muin v. Union Territory of Delhi, AIR (1981) SC 802.

Author: Utkarsh tiwari, University of Petroleum and Energy Studies, Dehradun

Editor: Kanishka Vaish, Senior Editor, LexLife India

Marital Rape: A Question of Sexual Autonomy of Married Women

Reading time : 6 minutes

INTRODUCTION

Marriage is organised in certain societies for procreation, according to an Oxford University report. In these cases, the parties may or may not consent to marriage; hence, if consent is not necessary for marriage, it is not required for intercourse. Furthermore, in cultures where the tradition of paying a bride price is popular, the payment is considered as granting the male the right to sexually control his wife. ^[1]

So, although traditionally, the home is considered a safe space for women from gendered violence, however, this belief is far from reality. The phrase “marital rape” refers to sexual intercourse between a married couple without the wife’s consent. It could have been obtained by use or threat of force, a fear of danger to her or another person she cares about, or any other harm inferred based on previous attacks, making a woman believe that if she resists, the force will be used against her or that the husband is entitled to the sexual intercourse because they are married. [2] The Declaration on Elimination of Violence against Women, 1993 (DEVW) states that nations should “Widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape”. [3]

Experts say the ramifications of marital rape can be severe, based on the victims’ experiences. Unlike other types of rape, victims are compelled to live with their attackers and are frequently financially reliant on them. Women who are raped by their husbands in nations with low percentages of female labor participation and education have no way out of the marriage and few legal or institutional options. Single women who have been raped in some countries are forced to marry their attackers as a method of rectifying the offence. ^[4] Males can also be victims of marital rape, although it is rarely publicized. According to one research, between 13 and 16 percent of men are assaulted by married or cohabiting partners at some point in their lives. ^[5]

Despite this, marital rape is a type of gendered violence that has avoided both criminal law and human rights recognition in about a third of the world’s countries. This legal opacity gives men who sexually abuse or rape their spouses or intimate partners legal immunity, legitimizing this kind of violence against women. This is a human rights issue that has to be addressed on both a legal and social level.[6]

HISTORY

Several explanations have been advanced regarding men’s historical criminal immunity for marital rape, most of which have their origins in British colonial laws and attitudes. First, the implied consent theory suggested that when women marry, they relinquish their right to refuse sexual intercourse with their husbands. A second approach, based on the oneness of the person, proposed that after marriage, a woman was subsumed into the person of her husband, rendering marital rape impossible. A third perspective portrayed wives as the property of their husbands, with property damage implying that the crime was perpetrated against the victim’s husband rather than the victim herself. As a result, a husband could not rape his wife since she was his property, implying that husbands had the right to rape their wives without consequence. Other arguments included the complexity of proving non-consensual sexual activity in a marital relationship, the alleged proclivity of women to make false claims about being raped to gain an advantage in divorce proceedings, the importance of maintaining the integrity of the institution of marriage, the argument that marital rape is less grave than other kinds of rape, and the argument that women have other legal avenues like domestic violence laws to leave a toxic marriage. [7]

With the recognition of the human rights of women and the emergence of the feminist movement in the nineteenth century, these beliefs began to be questioned. Suffragists such as Lucy Stone challenged the taboo of discussing sex in public by contending that a woman’s freedom to regulate marital intercourse was a necessary component of equality. The Soviet Union was the first country to make marital rape illegal (1922). By the 1960s and 1970s, most Western nations had made marital rape a criminal offence, either by removing legislative exclusions from the definition of rape or by expressly defining it as such. [8]

INTERNATIONAL LAW

Convention on the Elimination of Discrimination Against Women (CEDAW):

Women of all ages are susceptible to violence within familial relationships, which is reinforced by custom and social attitudes, including rape. The persisting, primarily male, notion that consent is not required after marriage fosters the occurrence of marital rape. Acts that cause bodily, emotional, or sexual injury to women are considered discrimination against women, according to CEDAW’s General Recommendation 19 (GR-19). “The right to the greatest quality achievable of bodily and mental health” is also included in GR-19’s definition of “human rights and basic freedoms.” The GR-19 goes on to say that the impact of abuse on women’s physical and mental integrity prevents them from exercising their human rights and basic freedoms equally. Additionally, this recommendation was altered by the General Recommendation 35 (GR-35), which stated that marital rape is rape based on a lack of free consent since there are usually coercive methods involved. The fact that GR-35 recognizes the ingredients of marital rape emphasizes the impact of its non-recognition on women’s basic liberties. [9]

India is required to adopt all relevant steps, including statutory provisions, to amend or abolish existing legislation, traditions, and systems that discriminate against women as a signatory under Article 2(f). To alter conventional ideas of consent, new law or revisions to IPC are both required and adequate. According to an examination of CEDAW’s regulations, India is in breach of international human rights standards forbidding gender inequality and rape. Since rape committed by the victim’s partner has been justified solely on the basis of her marital status, thus denying her the rights guaranteed to unmarried women, the deliberate exclusion of marital rape from the IPC fits within the CEDAW definition of being discriminatory.

Despite the fact that India has not ratified the Optional Protocol to CEDAW, which institutes a body to oversee State Parties’ compliance with the Convention. India has stopped the committee from taking any action against it by refusing to acknowledge it as an institution, even if activities that violate CEDAW occur within its authority. Although individuals cannot contact the committee with their problems, India still has a responsibility to defend and develop the human rights of women, regardless of their marital status. [10]

Since GR-35 generates liability for acts and omissions of state and non-state actors arising from violations of Article 2 of CEDAW, which mentions the undertaking of State Parties to undertake measures to end discrimination, India will have to face consequences for its state and non-state actors. In terms of state obligations, if a state fails to create or amend laws to ensure that they are not discriminatory against women, or if its organs or agents perform acts or omissions that are discriminatory against women, it must impose appropriate sanctions and compensate the harmed person. And if a state fails to do so, it will be considered a violation of human rights. [11]

Other International Human Rights instruments:

In addition to CEDAW, India’s failure to recognize marital rape as a crime breaches international human rights documents such as the International Covenant on Civil and Political Rights (ICCPR), Universal Declaration of Human Rights (UDHR), Beijing Declaration, and Declaration on the Elimination of Violence Against Women (DEVAW).

According to Article 26 of the ICCPR, domestic legislation must provide equal and effective protection against discrimination on any basis, including any other status of a person not previously stated in the provision, such as race or sex. Because India is a signatory to the Covenant, it is prohibited from violating any of the Covenant’s fundamental rights, as stated in Article 5. [12]

All human beings are free and equal in dignity and rights, according to Article 1 of the UDHR, and humans are entitled to a social and international framework in which the declaration’s rights and freedoms can be fully acknowledged, according to Article 28 of the UDHR. As a result, India is obligated to promote the right to bodily autonomy of married women since it is a signatory to the instrument. [13]

India’s laws are in violation of not just international human rights standards, but also ideals established during the Beijing World Conference on Women. To the extent that objections to CEDAW are minimized and the Optional Protocol is signed, the Beijing Declaration invites governments across the world to ensure universal ratification and full implementation of CEDAW. Countries were also asked to repeal discriminatory legislative elements, such as penal codes, as a matter of priority in this proclamation.[14]

The Declaration on the Elimination of Violence Against Women (DEVAW) talks about using the principle of due diligence in ensuring the elimination of violence against women in Article 4(c) and Article 4(d) says that states should adopt legal punishments in domestic legislation to penalize injustices faced by women. As a result, it is a widely accepted notion that violence against women should be addressed in whatever effective way possible, including through domestic legal change.[15]

POSITION OF INDIAN LAW

Section 375 of the Indian Penal Code defines rape as “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the seven following descriptions.” Thus, there are 7 situations where sexual intercourse would be considered rape under Indian law and 2 exceptions where it would not be considered rape. The second exception to the section states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”.[16] This means that if a wife is above 15, sexual intercourse which would be considered rape otherwise, would not be considered rape simply due to her being married to her rapist.

Fundamental rights aspect:

• Right to equality: Equality before the law and equal protection of the law are guaranteed under Article 14 of the constitution. Despite the fact that the country’s constitution allows for it, the country’s rape laws discriminate against married women. Women are protected against rape by the law, which divides them into two categories. The woman has the right to be protected under this statute only if she is unmarried, and she must be under the age of 15 if she is married. As a result, it seems to take away a married woman’s right to be free from her husband’s sexual exploitation. In Budhan Choudhary v. State of Bihar[17], the Supreme Court declared that “when a classification is formed under Article 14 of the Constitution, a test of reasonability is applied, which is passed only if there is a reasonable link between the classification and the goal it seeks to achieve.” [18]

• Right to Privacy: Although the Indian Constitution makes no explicit mention of the right to privacy, the Supreme Court has recognized that a right to privacy as a fundamentally guaranteed right under the scope of Article 21 in a string of landmark judgments such as Neera Mathur v. LIC ^[19], Kharak Singh v. State of Uttar Pradesh [20], Govind v. State of Madhya Pradesh [21], and others. Article 21 of the Constitution guarantees the right to privacy, which includes the right to protection and sexual safety is harmed by any sort of forceful sex. It is argued that allowing marital exclusion to rapists compromises a married woman’s right to protection by forcing her into a sexual relationship that she does not desire. In addition to physical privacy, the right to decisional privacy, the right to personal autonomy, and the right not to be harassed are all part of the right to privacy. Any forced sexual cohabitation is a breach of all these rights. [22]

• Right To Bodily Self-Determination: Similar to the right to privacy, this right does not find a particular mention in the constitution, however, it is considered a part of the ambit of article 21. This right gives every citizen of the country bodily autonomy as well as conscience, and an individual should be the only one who has a final word in issues regarding their body, sexual expression, and self-assurance. The law of the land takes away such a personal, intrinsic, and intimate decision-making right of married women by disregarding their consent and will. [23]

• Right to live with dignity: Article 21 encompasses the right to live with human dignity and all that entails way more than the necessities of life since having the bare minimum needs met does not ensure a fulfilling life. The right to live with human dignity is one of the most basic components of the right to life since it determines a person’s quality of life. In a series of instances, the Supreme Court has ruled that rape violates the victim’s right to life and the right to live with dignity. The Chairman, Railway Board v. Chandrima Das is one such case, in which the Court stated that rape is not only a criminal offence but also a transgression against society as a whole. In this way, the marital exception concept infringes on a spouse’s right to a dignified life. Any law that compromises women’s right to dignity and empowers husbands to force their wives into sexual intercourse against their consent is unconstitutional. [24]

Also read: WhatsApp Privacy Policy and Data Protection in India

The Supreme Court of India has repeatedly concluded in several judgments in recent years that the law gives substantial rights to women, including the ability to resist unwelcome sexual approaches by men. The Supreme Court addressed the subject of marital rape in its historic decision in Independent Thought vs. Union of India & Anr.[25], in which the Court considered whether sexual intercourse between a man and his wife aged fifteen to eighteen constitutes rape or not. The supreme court noted in its decision that the marital rape exception provision establishes an unnecessary and artificial distinction between a married girl child and an unmarried girl child that has no logical relevance with the goal sought. The demarcation violates Article 14 of the Constitution’s right to equal protection, as well as the constitutional ideology and morals enshrined in Articles 15(3) and 21 of the Constitution, which deal with special protection for women and children, as well as the right to life and personal liberty, respectively. This contributes to the perpetuation of prejudices and biases against married women, such as the notion that marriage implies consent by default and that women lose their physical autonomy when they marry. ^[26]

RECENT EVENTS

As of now, women can approach the court under IPC section 498 a or Protection of Women from Domestic Violence Act, 2005. Additionally, the marital rape of an adult wife who is legally or informally separated from her husband is a crime punishable by two to seven years in jail. Other married women who are subjected to “sexual nature that abuses, humiliates, degrades, or otherwise violates the dignity of woman” by their husbands may seek financial compensation from their husbands, including allowances and child custody, under the Protection of Women from Domestic Violence Act. ^[27]

Currently, the Delhi High Court is hearing a PIL (RIT Foundation v Union of India)challenging the second exception of section 375. In 2015, the NGO RIT Foundation filed a PIL with the Delhi High Court, questioning the legitimacy of the “marriage exception.” The All-India Democratic Women’s Association (AIDWA) and three individual petitioners, filed petitions after the Supreme Court ruled in 2017 that the said exception does not apply if the wife is under the age of 18. The Central Government argued in an affidavit filed in 2016 that criminalizing “marital rape” would “destabilize the institution of marriage and become a weapon for harassing husbands.” In a fresh document submitted on January 20, 2022, the Center asserted that consultations on this “contentious subject” are now underway, particularly in light of the 2013 Justice JS Verma committee findings. [28] A two-judge bench comprising of Justices Rajiv Shakdher and C Harishankar is currently hearing the case.

The petitioner NGOs as well as the Men’s Welfare Trust, a “men’s rights” organization that opposes the petition, have presented their arguments. At the moment, the Center has requested that the Court give it more time to make its position explicit, claiming that it is “undertaking a comprehensive exercise” of holding consultations on criminal code revisions and that the Court should give time to complete the assessment. ^[29] 

The pertinent question is about how consent is viewed or described in a situation where there is “implied consent” and “expectation of conjugal sexual relationship”. There is also a difference between a right and a reasonable expectation of sexual intercourse. When a party assumes that they have the right to sex due to their reasonable expectation of the same, that’s when a problem arises. The court is also analyzing the argument of “inherent and irrevocable consent” due to marital relationships and the right to say no or sexual autonomy.

Another contention is whether the difference of rape within and outside a marital relationship qualifies as “intelligible differentia” under article 14. Petitioners contend that there is no reasonable justification to elevate the “marital relationship” and restrict a married woman’s ability to prosecute her husband if her rights were violated. On the other side, the government and men’s rights organizations say that the institution of marriage indeed accounts for a reasonable distinction and that demarcating sexual assault within a marriage as a serious crime of “rape” would harm society and marriage. Few other contentions regarding the collection of evidence, the possibility of false cases, impact of false cases, whether this would create a new offence or not, legal lacuna, the scope of judicial interference, logistical issues, and ethical issues are being discussed. ^[30]Bottom of Form

CONCLUSION

Although India has come a long way in terms of women’s rights, issues like marital rape always seem to tear apart the illusion of a ‘progressive’ India and reveal that misogyny, patriarchy, and sexism still have a stronghold on our society. The debate may on the surface be about marital rape but in reality, it makes us shed light on the condition of women under the institution of marriage and how law still hasn’t been able to alleviate the position of women within the family unit. If an institution will be destroyed by granting a person the right to say no to unwanted sexual intercourse, then the institution itself is rotten. However, seeing how this discourse is being picked up by the entire country on various platforms, there seems to be a glimmer of hope from the judiciary and citizens of India. 

REFERENCES

1. The Indian Penal Code, 1960
2. The Constitution of India
3. Torres, M. & Yllo, Kersti. Marital Rape: Consent, Marriage and Social Change in Global Perspective. (2016). https://www.researchgate.net/publication/329399602_Marital_Rape_Consent_Marriage_and_Social_Change_in_Global_Perspective
4. Pragya Dixit. “Marital Rape Laws in India and internationally: All you need to know”.26th November 2020. https://lawcirca.com/marital-rape-laws-in-india-and-internationally-all-you-need-to-know/
5. OHCHR. Declaration on the Elimination of Violence against Women. (OHCHR, Geneva,1993). https://www.ohchr.org/en/professionalinterest/pages/violenceagainstwomen.aspx
6. Mira Patel. “A history of the movement to criminalise marital rape across the world”. The Indian Express. (February 18, 2022). https://indianexpress.com/article/research/a-history-of-the-movement-to-criminalise-marital-rape-across-the-world-7753164/
7. Tjaden, P., & Thoennes, N. Prevalence and consequences of male-to-female and female-to-male intimate partner violence as measured by the National Violence Against Women Survey. Violence Against Women. 6(2), 142–161. (2000). https://doi.org/10.1177/10778010022181769
8. Melanie Randall & Vasanthi Venkatesh. “Right to No: Crime of Marital Rape, Women’s Human Rights, and International Law”.  Volume 41, Issue 1, Article 3. Brooklyn Journal of International Law (2015). https://www.researchgate.net/publication/299595006_The_Right_to_No_The_Crime_of_Marital_Rape_Women’s_Human_Rights_and_International_Law/link/570178c908ae650a64f8c304/download
9. Prof. Jennifer Koshan. “The Legal Treatment of Marital Rape and Women’s Equality: An Analysis of The Canadian Experience”. The Equality Effect. (September, 2010). http://theequalityeffect.org/pdfs/maritalrapecanadexperience.pdf
10. OHCHR. Convention on the Elimination of All Forms of Discrimination against Women. (OHCHR, New York, 1979). https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx
11. Vaibhavi Patel. “Marital Rape in India: An International Human Rights Law Violation”. Berkeley Journal of International Law. (January 11, 2021). https://www.berkeleyjournalofinternationallaw.com/post/marital-rape-in-india-an-international-human-rights-law-violation
12. OHCHR. International Covenant on Civil and Political Rights. (OHCHR, Geneva, March, 1976). https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
13. United Nations. Universal Declaration of Human Rights. (UN, New York, December 1948). https://www.un.org/en/about-us/universal-declaration-of-human-rights
14. United Nations. Fourth World Conference on Women. Beijing Declaration. (UN, Beijing, September, 1995). https://www.un.org/womenwatch/daw/beijing/platform/declar.htm
15. Legal Services India. http://www.legalservicesindia.com/article/2369/Marital-Rape.html (last visited on 18^th February, 2022)
16. Apurva Vishwanath. “Explained: The debate over marital rape”. The Indian Express. (February 18, 2022). https://www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-22

---

[1] Torres, M. & Yllo, Kersti. Marital Rape: Consent, Marriage and Social Change in Global Perspective. (2016). https://www.researchgate.net/publication/329399602_Marital_Rape_Consent_Marriage_and_Social_Change_in_Global_Perspective

[2] Pragya Dixit. “Marital Rape Laws in India and internationally: All you need to know”.26th November 2020. https://lawcirca.com/marital-rape-laws-in-india-and-internationally-all-you-need-to-know/

[3] OHCHR. Declaration on the Elimination of Violence against Women. (OHCHR, Geneva,1993). https://www.ohchr.org/en/professionalinterest/pages/violenceagainstwomen.aspx

[4] Mira Patel. “A history of the movement to criminalise marital rape across the world”. The Indian Express. (February 18, 2022). https://indianexpress.com/article/research/a-history-of-the-movement-to-criminalise-marital-rape-across-the-world-7753164/

[5] Tjaden, P., & Thoennes, N. Prevalence and consequences of male-to-female and female-to-male intimate partner violence as measured by the National Violence Against Women Survey. Violence Against Women. 6(2), 142–161. (2000). https://doi.org/10.1177/10778010022181769

[6]  Melanie Randall & Vasanthi Venkatesh. “Right to No: Crime of Marital Rape, Women’s Human Rights, and International Law”.  Volume 41, Issue 1, Article 3. Brooklyn Journal of International Law (2015). https://www.researchgate.net/publication/299595006_The_Right_to_No_The_Crime_of_Marital_Rape_Women’s_Human_Rights_and_International_Law/link/570178c908ae650a64f8c304/download

[7] Prof. Jennifer Koshan. “The Legal Treatment of Marital Rape and Women’s Equality: An Analysis of The Canadian Experience”. The Equality Effect. (September 2010). http://theequalityeffect.org/pdfs/maritalrapecanadexperience.pdf

[8]  Mira Patel. “A history of the movement to criminalise marital rape across the world”. The Indian Express. (February 18, 2022). https://indianexpress.com/article/research/a-history-of-the-movement-to-criminalise-marital-rape-across-the-world-7753164/

[9] OHCHR. Convention on the Elimination of All Forms of Discrimination against Women. (OHCHR, New York, 1979). https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx

[10] OHCHR. Convention on the Elimination of All Forms of Discrimination against Women. (OHCHR, New York, 1979). https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx

[11] Vaibhavi Patel. “Marital Rape in India: An International Human Rights Law Violation”. Berkeley Journal of International Law. (January 11, 2021). https://www.berkeleyjournalofinternationallaw.com/post/marital-rape-in-india-an-international-human-rights-law-violation

[12]OHCHR. International Covenant on Civil and Political Rights. (OHCHR, Geneva, March 1976). https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

[13] United Nations. Universal Declaration of Human Rights. (UN, New York, December 1948). https://www.un.org/en/about-us/universal-declaration-of-human-rights

[14] United Nations. Fourth World Conference on Women. Beijing Declaration. (UN, Beijing, September 1995). https://www.un.org/womenwatch/daw/beijing/platform/declar.htm

[15] Vaibhavi Patel. “Marital Rape in India: An International Human Rights Law Violation”. Berkeley Journal of International Law. (January 11, 2021). https://www.berkeleyjournalofinternationallaw.com/post/marital-rape-in-india-an-international-human-rights-law-violation

[16] The Indian Penal Code, 1960, s. 375

[17] 1955 AIR 191

[18] Pragya Dixit. “Marital Rape Laws in India and internationally: All you need to know”.26th November 2020.https://lawcirca.com/marital-rape-laws-in-india-and-internationally-all-you-need-to-know/

[19] 1992 AIR 392

[20] 1955 AIR 191

[21] 1975 AIR 1378

[22] Legal Services India. http://www.legalservicesindia.com/article/2369/Marital-Rape.html (last visited on 18^th February, 2022)

[23] Pragya Dixit. “Marital Rape Laws in India and internationally: All you need to know”.26th November 2020.https://lawcirca.com/marital-rape-laws-in-india-and-internationally-all-you-need-to-know/

[24] Legal Services India. http://www.legalservicesindia.com/article/2369/Marital-Rape.html (last visited on 18^th February, 2022)

[25] AIR 2017 SC 4904

[26] Abhinav Mehrotra and Konina Mandal. “Marital rape: finding the right to say no”. The Leaflet. (July 22, 2021). https://www.theleaflet.in/marital-rape-finding-the-right-to-say-no/

[27] Mira Patel. “A history of the movement to criminalise marital rape across the world”. The Indian Express. (February 18, 2022). https://indianexpress.com/article/research/a-history-of-the-movement-to-criminalise-marital-rape-across-the-world-7753164/

[28] Apurva Vishwanath. “Explained: The debate over marital rape”. The Indian Express. (February 18, 2022). https://www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-22

[29] Apurva Vishwanath. “Explained: The debate over marital rape”. The Indian Express. (February 18, 2022). https://www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-22

[30] Apurva Vishwanath. “Explained: The debate over marital rape”. The Indian Express. (February 18, 2022). https://www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-22

Author: SONALI AHUJA, IPU

Editor: Kanishka Vaish, Senior Editor, LexLife India

Marital rape: sexual act by husband on his wife which is not a crime in India!

Reading time : 8 minutes           

One rape every 16 minutes was the rape statistics in the year 2020! What is rape? A man is said to commit rape on a woman without her consent or against her will, forcefully having sexual intercourse. Every day looking into the newspaper we find at least one or two girls or women being raped. Are there legislations for these? “Section 375 of the Indian penal code 1860 says, Whoever, except in the cases provided for in subsection (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine”. Rape is being discussed every day via news, social media platforms, general debates in schools and educational institutions. But why is that still “marital rape” has not come out to the light? When I spoke to my mom about marital rape, the first question she asked me was, “what was that?”. This question here arose because it is not yet been spoken around the country and the awareness about marital rape is very low. Is marital rape here a common thing because we all consider the institution of marriage as a free license to unlimited and non-consensual sexual acts?

Marital rape is the sexual act committed by a husband without his wife’s consent and/or against her will. He may use physical force or threaten, causing the woman to fear that physical force will be used if she resists. Some researchers said that, “husband rapists conclude that they rape to express fear, anger, to reinforce power, dominance, and control over their wives and families. 

The types of marital rape include:

1. Force only rape – it describes a husband who uses threats and violence only to the degree necessary to coerce sex. This usually happens in relationships where violence is verbal and usually where violence occurs in sexual interactions.
2. Battering rape – when beatings and rape are combined, it is known as battering rape. Rape occurs as a continuation of the physical assault and in some cases, physical violence continues during sex and the sexual act is very violent.

   3. Obsessive rape – this is the sadistic form of rape. Here the abuser seems to be obsessed with sex and the act itself is violent.

 India is one of the 36 countries which still haven’t criminalized marital rape leaving many women trapped in toxic marriages. But there were many petitions before the courts in India to declare marital rape as a criminal offense. Unfortunately, they all have been rejected. A petition was filed by a woman regarding marital rape, but the apex court dismissed it on the ground that law can’t be changed for one woman. And in  “Arnesh Kumar vs the State of Bihar”, it was held that criminalizing marital rape will collapse marriage and faith in this institution.

The constitution provides article 14 and 21 which provides equal rights and protection of rights to all of its citizens and protection of personal liberty and life of all. But the exception in section 375 of IPC is violative of fundamental rights of equality and protection of women. The exception being: ” sexual intercourse by a man with his wife, the wife not being under fifteen years of age is not rape”. This exception is solely based on her marital status and section 375 violates the rights of the married women who are victims of rape and refrain them from getting justice and being treated equally with their husbands. If we look into the precedent cases such as “Puttaswamy v Union of India” or the “State of Maharashtra v Madhukar Narayan”, it was ruled that sexual privacy is a fundamental right and a forced sexual act is a clear violation of this right. From this, we could say that the supreme court recognizes the sexual right of all women regardless of whether married or unmarried but which is being violated through the non-legislation or not criminalizing marital rape!

Back in 1860, when the British colonial rulers were in India, they mentioned several exemptions- situations in which sex is not considered as rape and one such exemption is “by a man with his wife who is not a minor”. It is implied in the law that consent is implied in marriage and the wife should accept it whenever needed. But this has been challenged by many people and therefore Britain outlawed the law. But the irony here is, India which was a colony of the British still follows the same law and hasn’t yet criminalized marital rape.

Also read: INTELLECTUAL PROPERTY RIGHTS VS HUMAN RIGHTS:- A STORY OF TUSSLE DURING PANDEMIC

Contradicting judgments of courts

Recently, justice NK Chandravanshi of Chhattisgarh high court has said that forced sexual intercourse between a legally wedded man and woman is not rape, even if it was against her consent or wishes. So in this case, the woman accused her husband of unnatural sex and raping her with objects. The judge said that the man could be tried for unnatural sex but cleared the allegations of a much serious offense of rape since our law doesn’t recognize marital rape. The Kerala high court on the contrary observed that marital rape is a valid ground for seeking a divorce. But why this contradiction? Many netizens have been outraged after the judgment by Chhattisgarh high court and have shared their opinion. Is it because our countrywomen still live at the mercy of men? Many netizens criticized that woman by tweeting such as what kind of wife would complain of marital rape? and there must be something wrong with her character. Well, victim-blaming is not new in India or around the world, but no one deserves to be raped and rape is never a victim’s fault. So, marital rape occurs when the husband believes that he owns his wife and her body. Well, the law is a clear violation of women’s rights, and the advantage it provides to men is unfair.

What could be done

India has always spoken of being modern but if we go underneath, you can see the real face. Women remain as the property of her husband. Marital rape is not criminalized in India not because a women’s right is violated, but because she’s the property of another man.

 In a country like India where a woman gets raped every 16 minutes and a married woman being raped is 17 times more, there is a need for bringing legislation against marital rape. Justice Verma committee in the 42^nd law commission report urged criminalization of marital rape but in the present only civil remedies under the domestic violence act of 2005 are available.

Even if the perpetrator is married or unmarried, aged or young, the fact that he raped will not change. And irrespective of the victims’ age, rape is always a rape if married or unmarried. The trauma caused by rape or harassment can never be explained in words. A woman who is raped by her husband, sleeping and spending the rest of her life with him is horrific.

Friends and family can be great sources of help and support. Speaking it to your close ones can be a relief and you could even find a solution for the issue. Support groups can be very helpful, by allowing victims to talk with other people dealing with abuse. Hotlines, should offer immediate support and provide reference to any social service agencies. Free or low-cost legal services for an emergency can be of great help.

Educating and spreading more awareness about marital rape is very essential even in modern India. Many women don’t even know they are being raped. Education about consensual sex must be given to all people. This may reduce this offense. And our judicial system should provide faith and trust to all women who come up with this issue. Even if it is one woman or many, it doesn’t matter. What matters is that no victim in our country should be avoided from getting proper justice. The judiciary should recognize marital rape as an offense and this is the time where Indian women raise their voices against marital rape and break the stereotype against marriage.

Author: SUBA NAKSHATRA.V, SASTRA DEEMED UNIVERSITY

Editor: Kanishka Vaish, Senior Editor, LexLife India.

MARITAL RAPE: A NON-CRIMINALIZED CRIME IN INDIA

Reading time : 6 minutes

Abstract

Marital rape means sexual intercourse done by the spouse without the consent of other spouse. It is mostly experienced by women. In India, there are several laws that protects women from sexual assault, rape, domestic violence but not from marital rape. There are so many countries who has criminalised marital rape including U.S.A.,U.K etc. but India  still have not criminalized marital rape.

Despite the expanded acknowledgment of different Penal laws in India, the marital Rape has produced in the beyond a few decades. There is a need for an exceptional law on marital assault in India, which ought to likewise be acknowledged with global standards on this specific issue. Ladies have been given with the option to battle for insurance, yet her own better half, who she wedded with full conviction, attempts to damage and torment her by having a forceful sex without her consent which eventually ruins her wellbeing and prosperity. There is no avocation or pertinence of the thought of all the conjugal exclusion in the current occasions.

India is as of now the seventh biggest country on the planet, and the speed at which the crime percentages are going up is profoundly disturbing and humiliating for a flourishing, multi-social, huge and common nation like India. Marital rape isn’t just the main worry in the field of women privileges right now, however it additionally abuses a few established arrangements simultaneously. Someone properly brought up that a nation’s development and improvement can be surveyed by taking a gender at the position and regard that it provides for its women.

In this paper, the researcher might want to give out the extent of marital rape, an investigation regarding for what reason hasn’t it been legitimized at this point and why it ought to be authorized in India.

INTRODUCTION

The possibility of marital rape has consistently been under a spotlight when it comes to the circumstances of India. The laws in India have widely chipped away at assault, rape and sexual maltreatment however have turned a dead eye to the idea of marital rape. Not that marital rape doesn’t exist in India, or its reality is near irrelevant, yet the cental government obviously asserts that it would break the upsides of family framework and behave like a solid hit against the foundation of marriage. They likewise made a case that the spouses will be hassled assuming this is the case is given a legal position. Marital rape is by and large viewed as the demonstration of starting sex with one’s life partner without the other mate offering agree to do as such. In many forward nations, marital rape has been condemned and hence, it holds similar lawful outcomes and legal situation as assault to some other person.

Everybody on the planet has their own point of view on whether marital rape ought to draw in corrective activities or it ought to simply be treated as a vital part of marriage as an expansive organization. The inquiry encompassing this matter is whether marital rape is obviously monitored by the arrangements of the Indian Constitution and the Indian Penal Code or the said arrangements deny its lawlessness.

The possibility of marital rape produced worldwide consideration and force in the second 50% of the twentieth century. Worldwide bodies began pursuing the possibility of marital rape and consequently, to clean up the dim, stowed away savagery against wedded ladies. Global contracts and laws appeared, in this way, demonstrating marital rape invalid and void, yet a few nations actually follow it as a vital part of the establishment of marriage.

In old India, marital rape had lawful and social sponsorship which upheld it on the ground that a life partner was qualified for the right of having sex with his mate. That is somewhat a man centric case in this specific situation. Marital rape in India firmly relies upon non-existent, some of the time interpretative stanzas in the Indian Constitution or the Indian Penal Code and the differing comprehension of Courts.

Nonetheless, the cental government alone can’t be faulted for a particularly appalling and grisly demonstration against ladies is still set up, it is the exceptionally male centric and male ruled set up of the Indian culture that we live in. The very society enables its men to carry out such violations and pull off it toward the day’s end. Marital rape, in itself, is a piece of abusive behavior at home. It is a method for intense control of another singular’s musings, thoughts, body and psyche. It attacks a singular’s Right to Privacy and Right to carry on with an honorable life.

Status of marital rape in India:-

The meaning of rape is classified in Section 375 of the Indian Penal Code (IPC) incorporates all types of rape including non-consensual intercourse with a woman.

Non-Criminalization of marital rape in India excludes from Exception 2 to Section 375. In any case, Exception 2 to Section 375 excludes the offence of rape in the sexual intercourse by a man with his wife if she is more than 15 years old.

The idea of marital rape in India is the exemplification of what we call an “implied consent”. Marriage between a man and a woman here suggests that both have agreed to sex and it can’t be something else.

Status of marital rape in other countries:-

1.United State of America

Marital rape or spousal rape is criminalised in all the fifty states in the Unites States of America. However, not all the states in the United States of America treat marital rape and rape the same. Some states like Ohio, Michigan, Nevada treat them differently. But anyhow, marital rape is a crime under some section or the other. In no state is it legal in accordance with the existing laws.

For instance, in Maryland, two individuals who have separated paths by way of judicial separation or divorce are totally strangers to one another. Any coerced sexual act between the two will be considered no different than rape. This part of the US law is quite similar to that of India. The same law applies to the Indian legal scenario. However, the twist takes place when two spouses are residing together, if one of them coerces, threatens or uses force on the other, without the consent of the other spouse, then a valid prosecution can take place.

In Mississippi, a similar situation exists. A prosecution can come into existence only if the rapist and the victim are married and living together at the time of the incident and the rapist performs penetration against the victim’s will.  However, this law would exclude a situation where the victim is incapable of controlling their conduct, under drugs or narcotic influence or any other substance the victim is subjected to which numbs down their sense and presence of mind.

In Nevada, marriage can only be a defence in a situation where there was no threat or force. In a scenario where the victim was subjected to any kind of force or threat, then the defence of marriage is to no avail.

However, in Oklahoma, a person cannot charge their spouse for rape if they were compelled to submit under the influence of narcotics and drugs.

Laws in the USA vary according to the state. In some places marital rape is considered null and void by law in all its forms, in other states the laws have missed out the influence of drugs and narcotics and some other aspects which have not yet come to light.

2. United Kingdom

In the United Kingdom, all kinds of sexual offences are dealt with under the Sexual Offences Act, 2003. In the UK too, marital rape is expressly considered a crime. Section 1 of the same talks about rape. A person is said to have committed the crime of rape if the accused penetrates his penis into the vagina, anus or mouth of the person without their consent and on purpose. It doesn’t matter whether the victim resides with the accused or not, knows the accused or not, or is or was married to the accused or not. What matters is the element of consent. If the victim hasn’t consented to the penetration, then it will be considered as rape. 

A landmark case in this regard is R v R . In this case, the House of Lords held that it is possible under the English Criminal Law the commit rape on his own wife. The defendant, that is the husband, claimed that he can commit rape on his wife since the wife gave him irrevocable consent by the contract of marriage. Thus, as a reaction to this, both the House of Lords and the Court of Appeal held that there is no exception of marital rape under the English law.

Also read: THE SAVIOR OF WOMEN IN DISTRESS: JUDICIARY & DOMESTIC VIOLENCE

ANALYSIS                     

As one can deduce from the words given above, there are several sections in the Indian Penal Code which could be used to safeguard a woman from marital rape. There are several sections from the IPC which are violated when ideas like Marital Rape aren’t taken seriously in a marriage. However, countering the counter arguments, the idea of marital rape is one that tarnishes the idea of marriage because it is a woman’s own husband that forces her for sexual encounter, whom she trusts and has faith to protect her. This causes more of a trauma than being raped by a total stranger.

As one can see that the country of England has made much progress in accepting marital rape as a flaw and making laws towards it. Not far behind is the United States of America, which has banned marital rape in few states now.

Marital Rape: Against Legal and Constitutional Rights

Non-Criminalized nature of marital rape radiates from the British period. At the time the IPC was drafted during the 1860s, a wedded lady was not viewed as an autonomous legitimate substance. The conjugal exemption for the IPC’s meaning of assault was drafted based on Victorian man centric standards that didn’t perceive people as equivalents, didn’t permit wedded ladies to claim property, and combined the characters of a couple under the “Precept of Coverture.”

Violation of Article 14-

Marital rape abuses the right to uniformity revered in Article 14 of the Indian constitution.

The exception makes two classes of ladies dependent on their marital status and inoculates activities executed by men against their spouses.

In doing as such, the Exception makes conceivable the exploitation of wedded people for reasons unknown other than their conjugal status while shielding unmarried ladies from those equivalent demonstrations.

Defeats the Spirit of Section 375 of IPC-

The reason for Section 375 of IPC is to secure ladies and rebuff the individuals who take part in the uncaring movement of assault.

In any case, absolving spouses from discipline is totally conflicting to that goal, as the outcomes of assault are a similar whether a lady is hitched or unmarried.

Additionally, wedded ladies may really think that it is more hard to get away from harmful conditions at home since they are legitimately and monetarily attached to their spouses.

Violation of Article 21-

According to inventive understanding by the Supreme Court, rights under Article 21 incorporate the rights to wellbeing, security, respect, safe everyday environments, and safe climate, among others

In the State of Karnataka v. Krishnappa[1], the Supreme Court held that sexual savagery separated from being a dehumanizing act is an unlawful interruption of the right to security and sacredness of a female.

In a similar judgment, it held that non-consensual sex adds up to physical and sexual brutality.

In the Suchita Srivastava v. Chandigarh Administration[2], the Supreme Court compared the option to settle on decisions identified with sexual movement with rights to individual freedom, protection, poise, and real respectability under Article 21 of the Constitution.

In Justice K.S. Puttuswamy (Retd.) v. Association of India[3], the Supreme Court perceived the right to security as a basic right, everything being equal.

The right to protection incorporates “decisional security reflected by a capacity to settle on personal choices essentially comprising of one’s sexual or procreative nature and choices in regard of private relations.

In this load of decisions the Supreme Court has perceived the option to swear off sexual movement for all ladies, independent of their conjugal status, as a crucial right gave by Article 21 of the Constitution.

Contradiction arises despite Justice J.S. Verma panel recommendation to make marital rape a crime

Four years after the Supreme Court referred to Justice J.S. Verma committee’s recommendation to make marital rape a crime, besides quoting from decisions of courts across the world that “a rapist remains a rapist and marriage with the victim does not convert him into a non-rapist”, Indian courts continue to take views on marital rape that are the polar opposite of each other.

The recent response from courts to complaints of marital rape has been contradictory. When the Kerala High Court backed marital rape as a valid ground for divorce, a court in Maharashtra gave anticipatory bail to a man while concluding that forcible sex with his wife was not an  “illegal thing” though she said it left her paralysed.

In 2017, the top court, in Independent Thought versus Union of India, refused to delve into the question of marital rape while examining an exception to Section 375 of rape of the Indian Penal Code which allows a man to force sex on his wife if she is above 15 years of age. However, in its judgment that declared “sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not”, the Supreme Court highlighted that legislative immunity given to marital rape stemmed from the “outdated notion that a wife is no more than a subservient chattel of her husband”.

Similarly, the Gujarat High Court has held that “a law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape”.

“It allows the men and women to believe that wife rape is acceptable. Making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape,” the High Court had suggested.

Legislative amnesty to marital rape continues to survive in the statute book despite a gamut of decisions by the Supreme Court upholding the bodily integrity and privacy of women right under article 21.

 WHAT CAN BE DONE

 In a nation where a lady gets assaulted at regular intervals and the probability of an Indian wedded lady experiencing sexual violence is multiple times more, the requirement for dynamic interest in authorization of marital rape is relevant. Despite the fact that in the new past, the Justice Verma Committee and the 42nd Law Commission Report have encouraged criminalisation of marital rape, the main alleviation presently accessible are the common cures spread out under the Domestic Violence Act of 2005.

There is an earnest requirement for the legal executive to perceive marital rape as an offense under the Indian Penal Code, particularly now when there is a flood in homegrown and sexual brutality bodies of evidence against ladies because of the pandemic-instigated lockdown.

The disposal of Exception 2 of Section 375 and the discipline for marital rape being comparable to the one recommended under Section 376 would ultimately prompt all encompassing advancement of criminal legal executive in our country.

Notwithstanding the culprit’s personality or the casualty’s age, the way that it was an assault doesn’t change. A lady who is assaulted by a more bizarre conveys the memory of an awful episode with her; then again, a lady who is assaulted by her own significant other lives and needs to lay down with her attacker. It is about time that Indian ladies and their common liberties are not disregarded, particularly the legal executive that has committed to secure each individual’s principal rights.

 Conclusion

Taking into account the laws of other countries in comparison to the Indian nation, India is far behind from taking a step to create an exclusive law for MARITAL RAPE at the moment.  Till a new law comes into being, the provisions from IPC and the Indian Constitution could be used as a defence. However, in the changing times every law needs to go through a change as one is discovering new things everyday and human mind is constantly evolving. Thus, till a new law is in place, one can use the existing provisions. After a scrutinising study one can bring a new law in place for Marital Rape or add relevant sections to IPC or the Domestic Violence Act.

Countries like the United Kingdom have taken relevant steps to recognise this social evil and are constantly making new laws in order to fight this kind of an atrocity against woman. However, there have been many counter arguments in this line of thoughts namely, that curbing marital rape would be an attack on the institution of marriage and thus would be constantly misused. This is the reason why the researcher suggests that the law making authorities may take time to analyse and scrutinise the consequences and results rather than haphazardly put a law in place. Marital rape, without a doubt, is a violation of a woman’s right to dignity and wellbeing and thus, for a progressive country to thrive, a law should be brought into place.

---

[1]AIR 2000 SC 1470,(2000) SCC 75

[2] AIR (2009) 14 SCR 989,(2009) 9 SCC 1

[3] AIR 2017 SCC 4161

Author: Sandhya Kumari, Balaji Law College, Pune University

Editor: Kanishka Vaish, Senior Editor, LexLife India.

Marital Rape – Right Given but Justice Denied

                                                                                                                

Reading time : 6 minutes 

Socanti jamayo yatra vinasyasu tat kulam.

Na socanti tu yatraita vardhate tad hi sarvada.

Where female of the family lives in grief or pain, that family soon wholly perishes.

Where female of the family is happy and satisfied, that family prospers. (Manu 3.57).

Introduction and definition

India’s ideal women are appreciated based on their characteristics like fidelity, chastity, honesty, non-fickle mind behavior, servitude towards husband, purity, and many more. This type of fascination and conditioning of women is a tumor for the society and has made domestic violence an entrenched problem in India. Domestic violence can be defined as relationship abuse or domestic abuse of physical, mental, or financial nature, even by parents, in-laws, husband, or other family members. According, to the National Crime Records Bureau’s (NCRB), Crime in India 2019 report, the crime rate registered per lakh women is 62.4% out of which majority of cases were registered under ‘cruelty by husband or his relatives’ [1]. Violence against women has increased in the lockdown. According to Press Information Bureau’s report, 4,350 cases had been registered from March 2020 till 18 September 2020 under “Protection of women against domestic violence.” In contrast, the National Commission had registered a total of 13,410 complaints about Women (NCW) in the same time frame [2].

One such manifestation of Domestic violence is Marital Rape. Marital rape can be defined to be an act of forcing your spouse into having sexual intercourse without their proper consent.  Marital rape is a type of domestic violence that is significantly undermined in India. It is a disgraceful offense that has scarred the trust and confidence in the institution of marriage. Even the position of law prevailing as on date in the country, is that a wife cannot proceed against her lawfully wedded husband for rape. Which is evident from sec 375 of the IPC where it clearly states that “sexual intercourse or acts by a man with his wife, the wife not being under fifteen years of age, is not rape.”  However, a woman can move to the court under sec 498A of IPC “cruelty by husband or relatives of husband” and also under “The Protection of Women from Domestic Violence Act, 2005, which considers marital rape as local violence. Under which, a lady can move to the court to get a legal partition from her husband for marital rape.

Origin and Misconception

The origin of the concept of a marital exemption from rape laws is the misinterpretation of societal Stereotype idea of merging a woman’s identity with her husband and that by marriage, a woman gives irrevocable consent for her husband to have sex with her anytime he demands it. But why do we fail to recognize that IPC was drafted by ‘Lord Macaulay’ in 1861 and was primarily influenced British laws? It is also worthy to note that during 1860, when the IPC was being drafted, a married woman did not have an independent legal identity. Thus, this concept of marital exemption is based on Judeo-Christian moral and ethical standards as well as Victorian Patriarchal norms and ‘Doctrine of Coverture.’, which conceive of sex on purely functional terms, i.e., for procreation. They did not recognize men and women as equal, did not allow married women to own property, and merged the identity of husband and wife as a single legal entity. But the times have changed now, and the Indian legal system affords separate and independent legal identities to husband and wife. However, the exception to marital rape remains the same due to being defended by a misconception that, it is also part of Indian values and societal morals.

However, people fail to understand, or they don’t want to realize that, as far as India is concerned, marriage is a Sacramental union that is sacrosanct. Hindus conceive of their marriage as a union primarily meant for the performance of religious rites. It is stated in Skanda Purana 4.68 that “two worlds, viz., the visible and the other world, are won through wife. A man without a wife is not entitled to perform the rites of Yajna about gods, manes, and guests, etc.”.  Though, Manu IX, 96 it is written that marriage is an essential samskaras (sacrament) for every Hindu, and every Hindu must marry as, “to be mothers were women created and to be father were men” [3]. But the sacred texts also ordain that woman must be treated as equal and be respected, in Manu 3.56 it is written that “where women are worshipped (respected) there gods reside; where they are not respected there no ritual or yajna yields reward”. Mahabharat’s Adi Parva (1.74.50-51), also states that “no man, even in anger, should do something disagreeable to his wife.”. So, it can be seen that, in Hinduism, the wife is not only a Grihapatni but also Dharma Patni and Sah dharmini. Vishnu Purana (1.8.16-35) says that “if lord Vishnu is understanding then Lakshmi is intellect, if Vishnu is Creator, then Lakshmi is the creation and it goes on to say that in animals, humans, god’s, the male is lord Vishnu and Female is goddess Lakshmi.” These verses clearly shows that the sacred texts believe husband and wives are equal, and none is complete without the other.

Islamic teaching also preaches and advocates marriage to be a religious and pious duty. Prof. Abdur Rahman I. Doi, in his article “Women in the Quran and the Sunnah,” [4] says, that according to Prophet Muhammed, “marriage is most virtuous of acts.” Prophet Muhammad has said, “when a man marries, he has completed one half of his religion.” Prophet condemned cruelties to women and preached, “Fear Allah in respect of women; the best of you are they who behave best to their wives.” The teachings of Prophet Muhammed convey the actual status of the wife in Islam. Even in Christianity, marriage is Sacramental. It is believed that the Sacrament of Christian marriage involves the couple’s entire life as they journey together through the ups and downs of marriages and become abler to give to and receive from each other. Pope Paul VI has written in Human Vitae, N 25, that “by Sacrament of Matrimony husband and wife are strengthened and consecrated for the faithful accomplishment of their proper duties, for carrying out their proper vocation and even to perfection, and the Christian witness which is proper to them before the whole world.” Christianity believes abuse and neglect break the marriage covenant. In Malachi 2:14-15, the lord described the man’s companion as his wife by covenant and warned him not to deal treachery with her.

From this, it is clear that all religions abhor and dissuade violence in marriage, thereby condemning marital rape. However, the excess patriarchal dominancy in the medieval period, ignored the concept of marital rape altogether. With due time, this cruelty became part of the present society giving birth to the misconception that provides immunity to husbands in marital rape. In the current Indian community, where women are already on equal footing with men and are given legal rights and identities, it is appalling for such discriminatory practices of misconception to continue. This derogatory practice violates numerous rights of women throughout India.

Violation of rights and marital rape

1. Infringing right to equality

article 14 of the Constitution of India states that “the state shall not deny to any person equality before the law or equal protection of the laws within the territory of India.” The underlying object of Article 14 is to secure to all persons, citizens or non-citizens, the equality of status and opportunity referred to in the Preamble to our Constitution. This doctrine of equality before the law is a necessary result of the rule of law which pervades the Indian Constitution. The immunity provided in Sec 375 of IPC to husbands violates Article 14 of the Constitution. The case of John Vallamattom v. UOI [5] has stated that “all persons in similar circumstance shall be treated alike both in privilege and liabilities imposed.” However, the immunization of marital rape under IPC separates and discriminates between the same class of women. On the one hand, this procedural law provides for the punishment for rape if it is done by someone else to a woman, but on the other, it immunizes the rape when the woman’s husband does it. It is high time that we understand that “a rape is a rape.” There is no distinction in this offense. Justice Arijit Pasayat [6] has rightly said that “while a murderer destroys the physical frame of his victim, a rapist degrades and defiles the soul of a helpless female.” The Supreme court has laid down that the guarantee of equality is regarding substantive laws and procedural laws within its ambit. In Meenakshi mills ltd., Madhurai v. A.V. Visvanatha Sastri [7], the Supreme court held that “all litigants similarly situated are entitled to the same procedural rights for relief for defense.” But, still, in the case of rape happening to someone, they have a legal discourse to turn to; however, for the women whose husbands have forced themselves on them, they can do nothing but be a silent witness to the mockery of their rights. Merely because the husband of the woman commits this atrocity does not mean that the wife or woman with whom it happens does not suffer from physical and psychological traumas. The ignorance of the dilemma and psyche of the woman with whom such incidents happen is a grave social and legal injustice. The special provision of immunity under sec 375 of IPC does not provide any rational differentia nor has any sensible nexus as marital rape is not only savagery against women but also a violation of rights and a breach of trust in the institution of marriage. Any connection or relation among casualty and culprit does not make any offence less derogatory. So why should marital rape be any different?

Also read: WhatsApp’s new privacy policy : Yet another reason India new needs privacy laws

• Infringement of right to life and personal liberty.

Article 21 states, “no person shall be deprived of his life or personal liberty except according to the procedure established by law.” However, the Supreme court has interpreted this article beyond the purely literal sense. It now incorporates rights like the right to health, safe living conditions, a secure environment, privacy, and dignity. Thus, the right to life includes aspects that make life meaningful, complete, and worth living. The cultural stereotype that the girl has given lifetime consent for a sexual relationship is appalling and a clear violation of Article 21. Has anyone asked the girl whether she has given such consent or not? She is the one who is going to be a part of the relationship. And if that person forces himself on her, she has to bear with it as it is her duty as a wife. The girl with whom such incidents happen would she not suffer from phycological disorders. Would living in fear, anxiety, depression, and nightmares constitute the true meaning of the right to life and personal liberty to a married woman. A study conducted by Jennifer A. Bennie, Patricia A. Resick, and Millie Astin on “The relative effects of intimate partner physical and sexual violence on post-traumatic stress disorder symptomology” found that there is no significant difference between marital rape and stranger rape victims in terms of psychiatric disorders (e.g., major depression, obsessive-compulsive disorder, social phobia, and sexual dysfunctioning). In Bodhisattwa Gautam v. Subhra Chakraborty [8] the court has stated that “rape is not only a crime against a person of a woman, but it is also a crime against society. It is a crime against human rights and is violative of the victims most cherished right, namely right to live with human dignity contained in Article 21”. In this manner, is the marital exception principle not violative of the spouse’s right to live with human dignity, her privacy and other rights associated with Article 21.

In independent thought Union v. Union of India [9], the Supreme Court has held that “sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not”. In the same case, the court held that “exception 2 of sec 375 IPC creates an unnecessary and artificial distinction between a married girl child and unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. This artificial distinction is contrary to philosophy and ethos of Article 15(3) as well as contrary to article 21 of Constitution”. The highest court of the land itself believes that the exception of marital rape is unjust but has the court not done gross injustice to the same class of people by excluding the women above 18 years of age? The court in the same case says that “this exception is contrary to the philosophy of some statutes, bodily integrity of the girl child and her reproductive choice.” But, do women above 18 years of age not have the right to bodily integrity and reproductive choice. The Supreme court has in Justice K.S. Puttuswamy (retd.) v. UOI [10] held that the “right to privacy includes decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.” This ruling of the SC also does not distinguish between a married and unmarried woman. There is no contrary ruling stating ‘individuals right to privacy is lost by marital association.’ But sadly, the Defender of Rights (Judiciary) still differentiates between the rights of same class of women’s and they have to bear witness the failure of Judicial Machinery.

Marital rape and international Human rights violation

India is obligated to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs, and practices that constitute discrimination against women under Sec 2f of CEDAW (Convention on the Elimination of Discrimination Against Women). General Recommendation (GR) – 35 of CEDAW, which updated GR -19, added, among other things, that marital rape is rape based on lack of freely given consent and take account of coercive measures. This recognition of elements of marital rape highlights the infringement of the fundamental freedoms of women. The GR – 19 also notes that violence on physical and mental integrity deprives women of the equal exercise of human rights and fundamental freedoms. The direct relationship between violence and liberty elucidates that rape is harmful to the physical and mental health of a woman, whether the perpetrator is their spouse or not, and thereby violates women’s human rights and fundamental freedoms.

In addition to CEDAW, India’s non-recognition of marital rape also violates ICCPR (International Covenant on Civil and Political Rights) and the UDHR (Universal Declaration of Human Rights), which India is a party to. Article 26 of ICCPR requires that “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.” In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth, or another status” and Article 1 of UDHR ordains that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. Thus, the non-recognition of marital rape amounts to the violation of these articles as well. Even the United Nations conventions on the Elimination of all Forms of Discrimination against Women has proposed in its resolution that Marital rape should be criminalized and that this sort of discrimination is an apparent infringement of the law of equality and human dignity.

Recourse available in India for marital rape

After the incident of Nirbhaya rape in December 2012, Justice Verma Committee was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. The Committee recommended that the exception to marital rape should be removed.  Marriage should not be considered as an irrevocable consent to sexual acts.  Therefore, with regard to an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant. However, Criminal Law Amendment Act, 2013 did not incorporated this recommendation. But Sec 376B was added in IPC which made Sexual intercourse without the wife’s consent by the husband during separation punishable by the punishment of not less than two years but which may extend to seven years, with a fine. Even though this section addresses the concerns and fears of women living separately, it did not help women who suffer daily sexual indignities in legally valid marriages. For, such concerns can be taken into the ambit of Protection of Women from Domestic Violence Act, 2005 and sec 498A of IPC, which provide recourse for the cruelty done by the husband or any member of the family. But the exclusion remains the same, and the woman could get a divorce from her husband under these sections. However, is the primary purpose of criminal law not defeated here by this exclusion. Is the recourse of divorce capable of doing justice to the women whose right is violated?

Conclusion

Positive legal change for women, in general, is happening in India. However, it is still a fact that women who are raped by their husband are more prone to multiple assaults and often suffer long-term psychological problems. UK, from where this exception to marital rape was codified for India in 1860, has made marital rape an offense punishable for 4 to 19 years of imprisonment in 2003.  So, it is time we brood over the continuance of a practice that is not only contrary to our religious beliefs but has also occupied the social trust due to misconceptions. In the present modern world, where women are capable and active members of working society, the social stigmas of marital rape are violation of many rights. This social stigma is a joke to women empowerment and the vision of Constitution framers who envisioned for equality before law and equal protection of law.  

It must be understood that the perpetrators’ identity or the victim’s age or habit doe not change the fact that they were raped; giving the color of marriage and justifying it only leaves a more horrific memory and experience for the victim. The judiciary needs to change its stand and make a solid stand to justify the violation of women’s rights as it has done in many other cases. The lawmakers must condemn this abhorring practice of marital rape and make laws to safeguard the rights of all women equally, irrespective of their marital status. A law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape. Making marital rape illegal or an offence will remove the destructive attitudes that promote wife rape. Such an action will raise a moral boundary that will inform the society that a punishment results if the boundary is transgressed. The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that marital rape is not husband’s privilege, but rather a violent act and an injustice that must be criminalized.

Education also plays an essential role in disciplining and improving society. India must also focus on educating all sections of society to overcome their social stigmas and respect the other person’s privacy and choices. Educating children is the cornerstone to building a wholesome, lawful nation that is deprived of abhorring social traditions such as marital rape.

Citation

[1] National Crime Records Bureau, Crime in India 2019 Statistics Vol. 1, (Ministry of Home Affairs)

[2] Press Information Bureau, Increase in Domestic violence against Women, (Ministry of Women and Child Development), 22 Sep 2020 report.

[3] Dr. Paras Diwan, Modern Hindu Law page no. 64, (Allahabad Law Agency, Faridabad), 23^rd     edition, 2017,2018.

[4] Prof. Abdur Rahman I. Doi, “Women in the Quran and the Sunnah”, iium.edu

[5] John Vallamattom v. UOI, (2003) 6 SCC 611: AIR 2003 SC 2902 

[6] Tulsidas Kanolkar vs. The State Of Goa, AIR 2003 SC 1

[7] Meenakshi Mills Ltd. V. UOI, AIR 1955 SC 13: (1955) 1 SCR 787

[8] Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty 1996 AIR 922, 1996 SCC (1) 490

[9] Writ Petition (Civil) No. 382 of 2013 decided by SC on 11 October 2017

[10] Justice K.S. Puttuswamy (retd.) v. UOI (2017) 10 SCC 1

Author: Harsh Raj Singh, Amity University

Editor: Kanishka Vaish, Senior Editor, LexLife India.Advertisements

Marital Rape- A Contemporary Issue in India

What is marital rape?

Marital rape is the act of having sexual intercourse with one’s spouse without consent. It may not primarily involve any kind of violence and just lack of consent is enough to account an act as marital rape. It comes under the head of domestic violence and sexual abuse. At present, more than 100 countries have criminalized marital rape. But India is among the 36 countries that still hasn’t. Section 375 of the Indian Penal Code (IPC) while vividly defines ‘rape’, it includes all forms of sexual abuse and even includes non-consensual intercourse between a man and a woman. Nevertheless, Exception 2 to this section clearly states that the non-consensual intercourse between a man and his wife provided the wife is not below 15 years of age does not account as rape. This clause thus, provides such a heinous act immunization from trial.  The idea behind this is ‘implied consent’ which means that when a man and woman get married, it implies they have consented to sexual intercourse. A wife is presumed to have consented for sexual intercourse when she agrees to get married.

 Now the constitutionality of this law can be questioned.

Violates article 14 of the Constitution of India

The Article 14 of the constitution states that the law ensures equal rights to everyone and also equal protection of these rights in front of the law. The State shall not discriminate between anyone. However, this issue of marital rape is violative of this article as it does not provide equal protection to women against their husbands. Now, the IPC dates back to 1862 when the law didn’t consider wives as separate legal units. They were considered to be possessions of their husbands. This is the sole reason that many rights weren’t granted to women until lately. It was due to the colonial influence of British and Victorian Era and thus didn’t consider men and women to be equal. Now, the times have changed and women are recognized by law as individual entities and we have several laws for prevention of abuse against women. However, Exception 2 still lacks in this sense. It provides protection to unmarried women from the abuse but married women are not protected from the same. It is violative of Article 14 as in the case of Buddhan Chauddhary v. State of Bihar[1], it was held that any classification under Article 14 can be termed as a valid classification provided it is reasonable and subjective to the test of reasonability. There should also exist an objective that it should aim to achieve. Now, this exception cannot be termed reasonable as it fails to meet the objective of Section 375 which is to protect women from sexual abuses. Moreover, it can seem to encourage men to perform such acts on their wives as they are well aware that they can be prosecuted. Moreover, committing the act of rape should have severe consequences regardless of the fact whether the victim was married or unmarried. Thus, this discriminates between married and unmarried women and fails to pass the test of reasonability. This overall violates Article 14.

Violates article 21 of the Constitution of India

Article 21 states that “No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India”.  To understand this, let us first closely analyze the scope of the right mentioned in this particular article. In many recent judgements, courts have expanded the scope of this right more than its literal meaning that interpreted it in a way to include right to privacy, health, dignity and safe environment. In more recent judgements, courts have recognized sexual assault as an invasion to a woman’s privacy and thus violative of the same. Now, in the landmark judgement of Justice K.S. Puttuswamy v. Union of India[2], the court had held that right to privacy is a fundamental right and it includes taking one’s decisions about intimate matters and sexual preferences. Thus, the exception 2 is violative of Article 21 as it refuses the married women their right to privacy. Moreover, it even violates the right to life with dignity. When a husband, forces his wife for intercourse, the woman is harmed both physically and mentally. More severe incidents can even scar their lives for a long mind. Now, this definitely is not what one with the right to live with dignity should experience. More like no one should ever experience this. Thus, this also violates right to life with dignity under Article 21. Altogether, Article 21 of the Constitution of India is violated.

We thus can conclude, how exception 2 can be questioned and should be striked out from the Constitution of India. Several writ petitions are submitted in multiple courts regarding the same but to no effect.

Let us now see what are some arguments that actually favor the fact that marital rape is not criminalized.

It’s contrary to the culture of India

The former Chief Justice of India Dipak Misra said that marital rape should not be criminalized in India as it will result in absolute anarchism in families and India as a country sustains itself because of the family platform that upholds all values. He had further added that due to socio-economic reasons, marital rape cannot be criminalized like in the West. Thus, everyone who was supporting such a cause was said to be blinded by the Western influence. It is believed that India because of the fact that it lacks literacy and other socio-economic norms cannot criminalize marital rape. Majority people will not be able to come to terms with it due to the traditional belief among the masses that a husband cannot perform such an act upon his wife. Moreover, a good wife would have consented forever while getting married and thus the question of non-consensual intercourse doesn’t arise. This can in turn shake the foundation of many marriages as women would realize their rights and would ask for legal recourse.  There can be sudden outrage in the country. Now, this argument doesn’t hold significance as not criminalizing marital rape so that marriages don’t fall apart holds little value. It is ironical as Supreme Court itself believes that criminalizing marital rape cannot harm the foundation of marriages. In Independent Though v. Union of India, it was held that “if divorce and judicial separation cannot shake foundation of marriages, criminalizing marital rape will certainly not”.

A woman gives her perpetual consent when getting married

Our society is deeply rooted with the idea that once a woman is married, she has given her perpetual consent while entering matrimony. Thus, the question of husband assaulting wife doesn’t arise. Indian laws date back to 1700s when this was the common belief due to colonial influence. It was believed that a woman while getting married gives her consent which cannot be withdrawn as she entered the matrimony. Another justification for existence of the practice of marital rape is that in 1753 William Blackstone had defended the doctrine of coverture of Common Law and had stated that husband and wife are one ‘legal entity’ and thus the legal existence of the wife is suspended. The doctrine of coverture recognizes wife as the possession of husband and thus sees them as one and the same person in the eyes of the law. Gradually, British Law moved forward and in 1991 it was held that marriage is a relationship of two equals and a wife no longer should be considered as a possession of the husband. However, Indian law regarding marital rape shows little progress in this regard.

Women will misuse other laws in term of marital rape

  According to a document submitted in Delhi High Court, it was said that if marital rape was criminalized in India, then wives can get an easy tool to harass husbands as only wives will have a say to the question whether any sexual activity between the couple was consensual or not. Time and again it is argued that women will falsely accuse their husbands whether it was regarding domestic violence, dowry or most recent marital rape. Statistics say that 40% women are victims of marital rape. This clearly shows how grave the situation is and how criminalizing marital rape is the need of the hour. Now even if some women falsely accuse their husbands, then judiciary is there to handle the same. The false accusers will be punished accordingly. As a matter of fact, the women are deprived of legal resources and thus they don’t have knowledge about the law. Thus, it is funny to think that they will misuse the law if they don’t know how to use the law.

Ironically, the argument that criminalizing marital rape is against our culture is contradictory to the argument that women will falsely accuse their husbands and misuse the law.

Some Recent Judgements on Marital Rape-

1. In the judgement of Nimesh Bhai Bharatbhai Desai vs. State of Gujarat[3], it was held that husbands need to be reminded that marriage cannot be a permit to force intercourse with their wives. A husband cannot own the body of his life partner due to reason of marriage. The wife in no case can be subject to ownership either. Even after entering in wedlock, the wife very well has rights to legally give or withdraw consent. Doctrine of Coverture doesn’t apply here. Marital rape is very much prevalent in India and has shaken the trust of women in the institution of marriage. a large chunk of women are victims to this and live with fear due to non-criminalization of this offense. The court therefore held that the accused must be punished for the same.

• On the other hand, in another case the Delhi High Court had completely dismissed the plea to criminalize marital rape. The reasoning given behind this was that court is concerned with interpretation of law and should stick to it. Laws are framed for a reason. This was in contradiction to the judgement given in K. Puttuswamy which had held that right to take intimate decisions including sexual preferences is included in right to privacy and thus since Article 21 is violated, marital rape should be criminalized.

• While framing the ‘right to privacy’ as a Constitutional Right, the Supreme Court observed the decisions on rape, sexual assault and sexual violence to be an unlawful violation of the right to security and life with dignity and an offense against a lady’s modesty. Another such judgement is the case of Suchita Srivastava. Here, the court guided the state to regard the regenerative privileges of the lady totally. These decisions obviously show that the most noteworthy court in the land concluded this privilege from a lady’s entitlement to security, nobility and substantial uprightness entirely.

Marital Rape from the Global Perspective

The offense of marital rape dates back to ancient times since the existence of the institution of marriage. It was always considered as a personal issue until few years back when it actually came outside closed doors. The term marital rape was often considered an oxymoron as from the traditional outlook, a wife was her husband’s property and thus question of rape or any sexual assault doesn’t arise. The first ever rape laws drafted by Lord Hale talked about the ideology of consent but didn’t include the marital view. The sole reason being that a woman gives her implied consent when getting married. At present approximately 150 countries have criminalized marital rape. However, it is often noticed that the offense of marital rape doesn’t seem to attract that attention as it deserves. In a survey of United States of America, it was observed that marital rape cases were not dealt with the same amount of seriousness as that of other sexual offenses. Moreover, such cases are often dealt without any prosecution.

In this 21^st century, the outlook of people towards the same is changing globally. The three main reasons can be found for this change in the way people perceive marital rape. Firstly, the importance given to women rights is no longer a fringe view. International Human Rights organizations are recognizing the same and thus undertaking various projects for equality of rights. Secondly, another major event that brought the issue of marital rape to limelight was the increase in the number of HIV cases. This was majorly seen in the African continent. It was observed that women were infected from their husbands and major reason being the inability to refuse intercourse. Lastly, the changing concept of marriage. traditionally, marriage was considered as a relationship primarily between two families to get their kids married for the sole purpose of reproduction. On the other hand, marriage is now considered as an intimate relation between two individuals where both show mutual affection and consent. This gradual change from reproduction to intimacy as the sole purpose of marriage has changed the concept of marital rape to quite some extent.

Conclusion-

Several countries in the world have already criminalized marital rape. Most of them have strict laws for the same. In this time of world crisis, when major chunk of people was locked in their homes for the major part of 2020, there was a slight rise in the cases of marital rape. This resulted in various social media awareness campaigns that spread awareness regarding the same and urged the women to come forward from abuse and take a stand. In India, this offense is not criminalized. Indian Legislature amends its laws from time to time but is slow in executing and enforcing these laws. In India, although several laws were passed for protection of women and their rights. The issue of marital rape still remains addressed. This issue was first addressed by the 172nd law commission report. However, it the raised issue was dismissed because of the fear that it will shake the foundation of marriage of many Indians. Advocates often argue that this could lead into women misusing the law and falsely accusing their husbands. However, we cannot ignore the fact that it is violative of the rights mentioned under Article 14 and Article 21.  And, anything that refuses people the enjoyment of their rights must be removed from the constitution.

Author: Ishita Khosla, Symbiosis Law School, Pune.

---

[1] Buddhan Chauddhary v. State of Bihar, AIR 1955 SCC 191

[2] Justice K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1

[3] Nimesh Bhai Bharatbhai Desai vs. State of Gujarat, 2018 SCC OnLine Guj 732

Author: Ishita Khosla from SLS, Pune.

Marital Rape: Does marriage extinguish rape?

Reading time : 12 minutes

Defined as non-consensual sexual intercourse with one’s spouse, marital rape remains one of the least examined facets of rape in India. The existing rape laws in India expose the darker patriarchal mindset of treating women as their husband’s property, thus rendering them a much inferior standing in a marital relationship. Marital rape has been recognised as a criminal offence in more than 106 countries but India chooses to be one of those 36 countries who prefer to leave this aspect completely untouched.

This article deals with marital rape in present Indian context.

Let’s peek into the historical background, shall we?

The 42^nd Law Commission’s report recommended that sexual intercourse by a man with his wife who lives separately, without her consent would not be covered under the ambit of marital rape exception.[1] The Law Commission’s 172^nd report however refrained from removing this exception completely as it believed it would be an unnecessary excessive intervention in a marital relationship.  [2]

Years later, the Justice Verma Committee set up in 2013 as a response to the horrific Nirbhaya Gang rape case (2012) strongly recommended to remove the marital rape exception and criminalise the act as it leaves married women devoid of their fundamental rights. However, this recommendation was not paid heed to and was not made a part of the Criminal Law Amendment Act 2013.[3] The said suggestion was disapproved by the Parliamentary Standing Committee on Home Affairs for supposedly 2 main reasons: The first being that it would seriously injure the holy institution of marriage  and second that married women were already entitled to raise their voice against any sexual violence, which qualified as cruelty within marriage.[4]

A private member bill proposing to criminalise marital rape in India was put forward in Lok Sabha in 2015. The bill saw no progress and the government has shown least interest in taking action with regard to this. Two years later, a Public Interest Litigation (PIL) was filed before the Delhi High Court by RIT Foundation (a social organisation) challenging the constitutional validity of the marital rape exception. The Delhi High Court, unsurprisingly argued against the petition. [5] Since then, many petitions have been filed, many debates and discussions have been held but all in vain.

What does the existing law say on marital rape?

According to sec 375 of Indian Penal Code (IPC),

“A man is said to commit “rape” if he—

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or

makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina,

the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina,

urethra, anus or any part of body of such woman or makes her to do so with him or any other

person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him

or any other person, under the circumstances falling under any of the following seven

descriptions”^[6]

Following this, there are 2 explanations and exceptions provided, out of which the second exception holds significance in the present context. The second exception reads as –

“Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.”^[7]

After Supreme Court’s landmark judgement in Independent Thought Vs Union of India in 2017, section 375 of IPC saw amendment by the Criminal Law Amendment Act, 2013. The aforementioned exception is now to be read as “Sexual intercourse or sexual acts by a man with his wife, the wife not being under eighteen years of age, is not rape.” This verdict holds significance since the language used in IPC posed a serious question: If marriage of a girl below eighteen years of age is not legal then how can marital rape of a girl between 15-18 age group can even be justified? The SC’s verdict though cleared this ambiguity, preferred to stay silent on the issue of marital rape of women above eighteen years of age.

 What exactly is wrong with the Status quo ?

The decriminalized state of marital rape in India is not only unfortunate but also legally impermissible since it outwardly goes against many constitutional provisions. Here, we’ll discuss them one by one.

Also read: Standard Form Contracts- The Hegemony of MNC’S

Article 14 : The two important elements of article 14 are test of reasonable classification and standard of arbitrariness. The very fact that such a sharp distinction as this has been made on the basis of marital status and not on the basis of consent of the woman itself speaks of the unreasonability of the classification. Moreover, denying women of their right over their own bodies post marriage, under the garb of protecting the sanctity of marriage is way too arbitrary.

The reasonable classification test comprises of dual elements: intelligible differentia and rational nexus to the object sought. It means that if there are certain groups categorised and treated differently, such classification must rely on reason and must have a rational connection to the aim that is sought to be achieved by law through such classification. The classification in this context, as explained above is based on an unreasonable criterion and the distinction between married and unmarried women on such basis fails to prove any rational nexus to the aim of preventing or criminalising rape.

In the Joseph Shrine case, it was observed that, as stated by section 497 that a husband owns the sexuality of his wife is too arbitrary.[8] The illegality of this exception in rape law is set up on the trial of arbitrariness. The arrangement is nonsensical to the extent that it gives invulnerability to married spouses for non-consensual sex, while exactly the same demonstration is condemned if there should arise an occurrence of unmarried persons. It makes a vague and unreasonable distinction between the sexual exercises inside and outside marriage. In doing as such, it not just invalidates the point of rape law, which is to punish the culprit of non-consensual sex, regardless of who they are, yet in addition forces an unbalanced weight on the woman to acquire a lawful cure.

Article 15 : Article 15 of the Indian Constitution prohibits discrimination on grounds only of caste, religion, sex, race, and place of birth. It further states that discrimination can be allowed for the benefit of women and children and those of backward castes; a form of pro-discrimination. The present status of marital rape however doesn’t fit into it.

Considering the present comprehension of article 15, the marital rape exception, which lays on the ideas of order among a couple, exposes the injustice embedded within it. The woman’s status is ascribed to that of a quiet creature latently submitting to the impulses of the spouse, dispossessed of any quantifiable level of independence, which reduces the woman to a mere object inside the conjugal structure. The generalization that she is needed to be inactive and her sexual independence is shortened has effectively been held to be in opposition to Article15 in Joseph Shine.[9] The present state of affairs overlooks the physical and mental integrity of women, hence, depriving them of their equivalent worth. It moreover  denies them of autonomy over their own bodies simply on the premise that they are now married. Such blatant discrimination of married women, eroding their dignity and integrity goes against the spirit and purpose of article 15(1).

Article 19(1)(a) : The expression of sexual longing is important for self-articulation secured under Article 19(1)(a). This expression should essentially incorporate the unhindered assurance of the terms under which such longing might be explained. It gives every individual the option to reject any sexual advancement or to even initiate the same. The freedom of picking when and when not to indulge in sexual activity is necessary to free expression. The same has been upheld in numerous Supreme Court judgements.

In the NALSA case, the SC held that every individual has the freedom to communicate in a way based on their personal preference, and this freedom reaches out from their decision of way of life, sexual inclinations, including sex character.[10] This enlarged scope of Article 19(1)(a) envelopes the subject of decision as freedom of choice, as against its conventional arrangement. This makes autonomy essential to acknowledge them. With regards to conjugal sex, the woman’s entitlement to sexual articulation involves her entitlement to decline sexual offers even if it’s her own husband. The marital rape exception removes the slightest possible chance of such decision being practiced totally to the point that it abuses the centre of articulation, smothering her dignity as an individual, thereby violating Article 19(1)(a).

Article 21 :  Sexual violence especially rape disregards the most fundamental notions of human existence— integrity, dignity and autonomy—and violates the individual freedom or personal liberty revered in Article 21. These values integral to dignified human life have been earnestly expressed in the apex court’s decisions like Puttaswamy and Navtej Johar.

Marital rape exception (MRE) denies married women of their right to lead a life with dignity. Moreover, it deprives them of their independence to choose over their bodies, which are characterizing features of personal liberty. The assurance of Article 21 was interpreted not only as the option to survive, yet additionally an assurance of certain fundamental conditions related with such presence. Through many of its judgements, the SC has greatly widened the scope of this article.[11] In Puttaswamy, for example, human dignity was perceived was an aspect of privacy, which was thus interpreted as a part of liberty.[12] There is no scope of dignity for a woman who’s forced to indulge in sexual intercourse by her husband.

Rape is viewed as a wrongdoing that not only undermines the respect of the person in question, yet additionally has an extreme, malicious effect on her mental peace. While all of these are central in cases of usual rape, the same derogatory act when committed by the spouse often has even a more noteworthy degree of humiliation because of the component of trust rested in the relationship. The effect as now can be perceived, is significantly more serious. Such a hardship likewise in opposition to the assurance of personal liberty under Article 21.

Article 23(1) : This provision of the Indian constitution prohibits forced labour and human trafficking in all forms. Justice Bhagwati in PUDR v Union of India held that “The word ‘force’ must therefore be constructed to include not only physical or legal force but also force arising from the compulsion of economic circumstance which leaves no choice of alternatives to a person in want and compels him to provide labour or service”[13]

This far reaching understanding of the provision suggests that foundational limitations to choose such as the male dominance can now be regarded as illegitimate. In other words, the concept of forced labour can be applied in a situation where significant exercise of free decision is denied because of the existing social structure. The right guaranteed under article 23(1) runs bidirectional; This means that the state must protect the victim from getting exploitered even from the actions of a private person or entity. This is so because article 23(1) is enforceable against non-state parties as well. The court in PUDR case had mentioned clearly that the Article is intended to secure the individual against the State as well as against other private residents.[14] The stubborn stand of the government and the lawmakers in this context makes married women devoid of sexual independence and autonomy.

In the disguise of protecting the sanctity and the holy nature of a marital relationship, the sickening patriarchal mould is being given new shapes by forcing the woman to offer sexual services devoid of her choice. This comprehension of MRE as forced labour reveals the gruesome reality and the pathetic state of married women in a progressive country like India. The State’s agreeability on unevenness of force within the private space, extensively reinforces the argument against MRE.

So, what hinders decriminalisation of MRE ?

Contentions against condemning conjugal assault centre around substantial evidence, or the ‘absence of’ it. To begin with, just because something is hard to demonstrate can’t be a contention to disregard a wrongdoing.

Even in usual rape cases, it is almost always challenging to prove the guilt of the accused. Although we often believe rape to be committed by someone unknown, in most of the cases it has been found to be a familiar person, a relative or acquaintance. Marital rape cases are in fact more serious than rape because it often involves a history of physical and mental abuse enervating the victim of her choice and dignity. An opportune clinical assessment can separate between consensual sex and non-consensual sex.

Another significant point often put forward against decriminalising marital rape is the burden of proof. How can non-consensual sexual intercourse be proved between husband and wife by utilising DNA samples? The appropriate response to this lies in Sheik Zakir versus State of Bihar case, where the apex court ruled that the shortfall of a clinical record would not pose a problem as far as the other evidences are credible.

Indeed, there are numerous pitfalls in the present legal system as far as marital rape is concerned but that is no excuse to the unjust treatment it renders to thousands of women.

Also read: ARTIFICIAL INTELLIGENCE AND INDIAN JUDICIARY

On an unending note….

Can marriage deny women of their autonomy and control over their own bodies? Can she be robed of her dignity, choice and personal integrity on the pretext of saving a social institution? Can a relationship be accorded so high a status as to deprive woman of her fundamental rights? In a recent Supreme Court hearing, the CJI observed “If a couple is living together as husband and wife, the husband may be a brutal man but can you call the act of sexual intercourse between them rape?”[15] The accused in the case was subsequently granted protection from arrest.

Rape, in all its forms and in all possible contexts is, rape! Things such as gender, age or marital status should not be a bar in determining rape. The society and we, as individuals are progressing day by day and our laws must be so adapted. NO means NO and it must be respected irrespective of who says it.

---

[1] Law Commission of India, 42^nd Report on Indian Penal Code, 1971

[2]Law Commission of India, 172^nd Report on Review of Rape Laws, 2000

[3] MR Madhavan, ‘The Criminal Laws Amendment Related to Sexual Offences’ (PRS

Legislative Research, 29 March 2013)

[4] Standing Committee on Home Affairs, 167^th Report on The Criminal Law (Amendment)

Bill, 2012  (2015)

[5] RIT Foundation v Union of India, Written Submission on behalf Respondent (Union of

India) WP (C) No284/2015(Delhi High Court)

[6] The Constitution of India, 1950 (Art 375 of 1950)

[7] Supra note 6

[8] Joseph Shine v. Union of India, 2018 SC 1676

[9] Supra note 8

[10] National Legal Services Authority vs Union Of India & Others, AIR 2014 SC 1863

[11] Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161; Olga Tellis (n 122); Mohini Jain (n 122); Subhash Kumar (n 122).

[12] Justice K.S. Puttaswamy vs Union of India, (2017) 10 SCC 1

[13] People’s Union for Democratic Rights v Union of India AIR 1982 SC 1473.

[14] ibid.

[15] Vinay Pratap Singh vs State of Uttar Pradesh, https://www.counterview.net/2021/03/

Author: SAMRIDDHI BAMMIDI

Editor: Kanishka Vaish, Senior Editor, LexLife India.

Marital Rape: An unheeded issue

Reading time: 7-8 minutes.

Does a woman or man lose their degree of sexual autonomy after marriage? Hon’ble Justice Dhananjaya Y. Chandrachud answered this debatable question in the negative. 

Respect is one of the foundation stones upon which the institution of marriage is built. The wedlock evokes an implied value of respecting the choices, individuality, and decisions of the spouse.

The husband and wife must ensure that the way they accept each other’s approval, they must also agree with their disagreement. And understand that a ‘NO’ is a clear and strong denial.

How pervasive is rape?

Rape is usually understood as unwanted, coerced or non-consensual sexual intercourse. Almost every day, women in our country fall prey to the insatiable desire for sex of men. Despite several protections, they are subjected to offences like domestic violence and sexual exploitation. Among various such problems, lies the unheeded issue of ‘marital rape’.

In ancient India, marital rape was not even accepted as an issue disdaining women. The primary reason behind such thinking is the patriarchal and male-dominated framework of Indian society. The portrayal of a woman as merely a property and a chattel of her husband is consistent since time immemorial.

Having sex with the wife is considered to be a manifested right of husband after entering into marital relations, which the former cannot retract. Even today, marriage is construed as an irrevocable and perpetual consent to sex.

It is visualised as a license to the men to go to any dangerous extent and physically exploit their wives. Many concur to the notion that a wife is duty bound to surrender to the desire and sexual whims of her husband without any complain.

Disappointingly, a married woman above the age of majority finds nothing to her rescue. In other words, law has permitted the husband to rape her wife without any intrusion by the State. It would be no wrong if it is said that marriage assigns all the rights of a wife to her husband and renders her helpless.

According to the dictum of Chief Justice Sir Matthew Hale, a husband cannot be convicted of raping his own wife on the sole reasoning that she gives up her body to the husband at the time of marriage. This principle was considered as an underlying claim for the exemption in case of marital rape.

It must be noted that the rape by husband is more brutal than rape by a stranger and its ignorance is a serious breach of a person’s fundamental right to life and personal liberty.

It’s vital that our legislators pay instant attention to the realities of sexual abuse. The protection of institution of marriage cannot be a valid defence to contravene the fundamental right of a woman to live with dignity and bodily integrity.

What is the provision in IPC regarding marital rape?

The sixth description given to the definition of rape under Section 375 of Indian Penal Code clearly states that the consent of a girl below the age of 18 years is immaterial and the sexual intercourse with her comes under the umbrella of rape.

Prior to the decision of Supreme Court in Independent Thoughts vs Union of India , exception 2 to the same section stated that “the sexual acts by a man with his wife, the wife not being under 15 years of age, is not rape.” But in this case, the Apex Court of India, in order to harmonise Indian Penal Code, Protection of Children from Sexual Offences Act (POCSO), Juvenile Justice (Care and Protection of Children) Act and Protection of Women from Domestic Violence Act, disapproved the distinction between an unmarried and a married girl.

The judges were of the view that a girl child remains a child irrespective of her marital status .When the consenting age has been fixed to 18 years; being married carves out no justification for the exception. The Honourable Court thus held that Exception 2 to Section 375 must now be meaningfully read as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape .”

Even as the decision in the aforementioned case harmonised the laws safeguarding the rights of minor girls, the question to protect married women above the age of 18 against sexual exploitation, remains wide open.

Several attempts have been made by the Law Commission of India and various committees in this direction, but all in vain. As the legislators of our country, are only concerned about the institution of marriage and least attentive to the brutal circumstances of marital rape which a married woman goes through.

What are the constitutional safeguards against marital rape?

Although, marital rape is not criminalized in India, the Constitution of India provides protection against the flaws that obstruct women empowerment. The Indian Constitution grants us an all-encompassing right as Article 21.

The judicial interpretation of years has expanded the scope of the article and right to live with human dignity is now within the purview of this provision. The heinous act of rape in marriages evidently contravenes the right to live with dignity and to this effect, it can be said that the exception provided under Section 375 of the Indian Penal Code, 1860 stands unwarranted.

Also, the right to privacy has aroused as a recent judicial development where the Apex Court observed that no individual can be subjected to intrusion to their privacy and personal space.

In the celebrated case of Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court with the ratio of 9:0 upheld the right to privacy as an inherent and integral part of Article 21. When interpreted in the context of marital rape, a wife is entitled to right to sexual privacy. Hence, no one can violate her right and invade into her privacy against her wish.

Article 14 of Indian Constitution guarantees the fundamental right where under “the State shall not deny any person equality before the law or equal protection of the laws within the territory of India.” This article, therefore acts as a custodian against discrimination by the State.

But the exception under Section 375 of the Indian Penal Code discriminates with a married woman and denies her the protection from rape. Thus, it is submitted that the exception is not a reasonable classification and therefore, violates Article 14 of the Constitution.

Similarly, Article 15(1) says that “the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, and place of birth or any of them.” However, the exception to Section 375 assumes non-withdrawable consent of married women to sex.

The assumption strengthens several gender stereotypes which subordinates women in the society and hence, is violative of Article 15 of the Constitution. The aforesaid drawbacks in the legal system of the country must be eradicated to ensure equal justice to married woman against mental and physical abuse faced by them.

What is the constructive stand of judiciary?

While the Legislature is in the process of finding a possible solution to this widespread problem, the Courts are playing a proactive role in ensuring a balance between the criminality of the act and subsequent misuse of the laws saving married women from sexual assault.

The Hon’ble Supreme Court in the case of Suchita Srivastava v. Chandigarh Administration explicitly stated, “A woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ under Article 21 and that this choice can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected.”

At various instances, the Apex Court has taken cognizance of the views eununciated by Justice (Retd.) JS Verma Committee, where it was concluded that the rapist remains the same regardless of his relation with the victim.

Moreover, in a judgement that garnered a lot of appreciation, Honourable Mr. Justice J.B. Pardiwala of Gujarat HC expressed concern on the limitations of the laws. His take on the criminalization was clear as he advocated for the outlawing of the non-consensual sex in marriages.

And, preached that inhumane treatment with women is absolutely intolerable. Evidently, the Indian Courts affirm that women are no properties of their spouse and are rightfully entitled to equivalent treatment socially as well as legally.

In conclusion…

The institution of marriage is definitely a bond of trust, respect ,and love. Procreation can be the primary purpose of marriage but the use of violence is absolutely unacceptable. The wife’s individuality and choices must be honoured and the line drawn between rapes within marriages and outside must be erased at earliest.

In India, long drawn debate of marital rape has ironically, not received much of deserved attention from the lawmakers. The Parliamentarians are of the view that marital rape could not be criminalized in our country as marriages are sacrosanct. And change or reformation in this system can destroy the sacred institution of marriage.

Based on the absurd logic that criminalizing the act will attack the sanctity of marriage and it might be used as a weapon by wife to attack the innocent husband, the State has been ignoring and violating the basic human rights of married women. This visibly indicates the careless and non-intervening approach of Legislature in family sphere.

But the point they usually tend to forget is that the culture and tradition of India worships women as deities. They must soon realise that if the paramountcy of the Constitution is to be maintained, the honor and worth of womenfolk must be vindicated. If this celebrated heritage is to be reinstated, women must find a place of safety and reverence in the society.

Nevertheless, the pragmatic viewpoint of Indian Judiciary in sundry cases is admired. The observations made by the Apex Court of India in support of the women can be perceived as the silver lining amidst, dark clouds of cruelty and discrimination.

-This article is brought to you in collaboration with Vaidehi Maharishi from S.S. Jain Subodh Law College, Jaipur.