ABSTRACT
Most people understand law to be the tool that is used to establish order and impose regulations on the human behavior. But the ideal definition of it is “the representation of fairness and reliability”. The very purpose of it should be to ensure the protection of its subjects and uphold justice. People need to feel comforted and relieved by the law in place. However, most often in the real world, people are wronged by their own law and judiciary, where it all comes down to the decision of a personality holding jurisdiction in determining the course of a victim’s life. Since law in our country has some loose ends, injustice in various derogatory forms has snuck through, right under the nose of the judiciary. This paper focuses on one such derogatory instance. In a recent judgment by the High Court of Chhattisgarh, non-consensual unnatural sex by a husband to his wife was observed to be excused. The research paper attempts to analyze the case, provide a well-thought insight into marital rape and the loopholes it has caused in the system. The paper aims to connect the acceptance of unnatural sex to the legality of marital rape, and how it violates rights and safety of women. The scholar offers her views on women’s safety in the country and legal let-downs in that context. The paper attempts to explain the inefficacy of the legal system in serving justice.
KEYWORDS
Consent, unnatural sex, marital rape, forceful sexual acts, women, Indian Penal Code
INTRODUCTION
“Justice is conscience, not a personal conscience but the conscience of the whole humanity”. The quote suggests that justice is not a personal take on issues but rather a collective understanding of ethics and humanity. The effectiveness of it is reflected in what it means to the victim. If the true victim is not relieved, justice doesn’t exist.
Women are strong pillars of our society. They were severely ill-treated and disrespected in the past. They had to go through different forms of assault for just existing. As a result of hurt and frustration, women started to protest and demand for what they were truly entitled to, which were basic human rights. Laws for gender equality were established and multiple provisions and policies were framed to ensure the upliftment of women. Women earned their place in the society through bravery and resilience. That is not to say they have completely rid the country of atrocities that cause them sufferings. One of the many atrocities is the ill-treatment of married women.
Women have found a honorable place in the society but not a dignified living within their own home. Once married, they are not treated with respect by their own family. To give an example, the way a wife is treated by her husband as a mere sex toy is atrocious.
In India, according to Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita, a woman can only file a complaint of sexual assault against a man who is not her husband. If she faces sexual cruelty by her husband, she is expected to tolerate it as it is not criminalized in the country. This undermines the efforts of women all these years towards being treated with respect. It also makes women question whether marriage is a smart choice for them.
RESEARCH METHODOLOGY
This paper is of descriptive and analytical nature, and the research draws on secondary sources for deep understanding of law surrounding unnatural sex and marital rape. The secondary sources used are articles, bare acts, newspaper, and websites.
REVIEW OF LITERATURE
As Christine de Pizan famously said, “How many women are there, who because of their husbands’ harshness, spend their weary lives in the bond of marriage in greater suffering than if they were slaves among the Saracens?”, marriage has been a strenuous task for women in most households in our country. On top of that, marital rape is seen to be prevalent and deep-rooted due to India’s unintentional normalization of sexual abuse between married couples.
In the case of State of Karnataka v. Krishnappa, the apex court held that sexual violence, apart from being an abhorrent act, contravenes the right to privacy and sullies the sanctity of a woman. That should apply in the case of marital rape as well.
Historically, marital rape was not considered an offence due to the doctrine of coverture, which assumes a wife’s consent upon her entering the marriage. Hale’s dictum in English common law reiterates that it is not possible for a husband to be guilty of raping his wife.
Previous judgments have played a vital role in influencing the legal status of marital rape in concerned countries. In the case of R v. R(1991) in the United Kindgom, the courts rejected the marital exemption, indicating its progression towards greater spousal autonomy. But that is not the case in all jurisdictions. Many do not recognize its evil nature due to judicial reluctance and traditional mindset.
Many international bodies like the United Nations recognize the depravity of marital rape. It considers marital rape to be a violation against women in UN Declaration of Violence against women.
THE RECENT CHHATTISGARH HIGH COURT JUDGMENT
Facts
A woman died at a hospital after her husband performed unnatural sex with her. He had inserted his hand into her anus, causing grave wounds in her body. According to the doctors that examined her, she suffered from peritonitis and rectal perforation. Peritonitis is a swelling of the lining of the belly or abdomen, and rectal perforation is a condition where a hole is caused in the rectal wall. From these results, it is inferred that the wounded body parts, situated deep inside in the woman’s body and is far from her vaginal opening, cannot normally be affected during sexual intercourse. It can only be caused by unnatural practice of sex. The woman, in her last moments, accused her husband of forceful sexual intercourse that costed her her life.
Issues
- Whether the actions of the husband amount to rape according to the Indian Penal Code?
- Whether consent of the wife is necessary for the husband to proceed with sexual intercourse with her?
- Whether the husband can be prosecuted under Section 377 of the IPC?
Judgment
The man was previously sentenced to 10 years of prison but the High Court of Chhattisgarh reversed the judgment and ruled that unnatural sex by a man with his wife was not an offence, citing Exception 2 under Section 375 of the Indian Penal Code, which said 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”. The provision now is observed under Section 65 of the BNS, with minimum age increased to eighteen. The High Court also highlighted the trial court’s inability in recording findings to condemn the husband’s actions under Section 304 of IPC, which dealt with culpable homicide that is not murder.
The consent of the wife holds no significance, as prior to this case, it was established by the High Court of Madhya Pradesh in a similar judgment in May 2024 that any sexual intercourse, including unnatural sex by a man with a wife, won’t amount to rape as the consent of the wife becomes immaterial in such cases.
The man was acquitted of all charges.
Review of Judgment
The Exception 2 under Section 375 of the IPC (updated: Section 65 of the BNS) protects husbands from being prosecuted for rape of their wives. By granting husbands to have unrestricted sexual pleasure in the marriage, the judgment had violated basic human rights of women:
- Indian constitution
- Article 14 – This article states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The Article gives validity to the principle, “Equals should be treated equally and unequals unequally”. All women, regardless of their marital status, should be protected equally by the law. Married women should be protected equally as unmarried women, from rape, as married status cannot make women any less eligible for protection against sexual assault. The judgment violates married women’s right to equal protection of law.
- Article 21 – This article guarantees right to life and personal liberty. It prescribes a person’s rights to bodily autonomy, dignity and freedom. It prohibits cruelty and demeaning treatment of any human. Forcing a woman to have sexual intercourse, let alone harmful and unnatural sex, contravenes the article, irrespective of her relationship with the man. The article also guarantees right to control one’s own health. Forceful unnatural sex by the husband caused severe damage to the victim’s body.
- Article 32 & 226 – These articles allow any individual to approach the courts if their fundamental rights are violated. Since right to one’s physical body is a fundamental right, women can approach the courts if they are subjected to rape and sexual abuse, with exception to marital rape since it is not criminalized. Though women can challenge injustice in the court of law, they are still discouraged to seek help in cases of marital rape.
- Protection of Women From Domestic Violence Act, 2005
Under the Domestic Violence Act, 2005, Protection Officers have been appointed by the Government to help the aggrieved woman in filing the case against her husband or against any male adult person who has committed domestic violence and who is in domestic relationship with the petitioner. This act, basically, helps a woman to live in a violent-free home. Forceful sex against a wife has to be considered a violation against her right to reside peacefully. The term, “domestic violence” means violent and aggressive behavior of a person, causing harm to the partner or the spouse. But the judgment conveys a fragmentary message that sexual abuse against a wife is neither an aggressive nor a violent behaviour.
- Miscellaneous – The Convention on the Elimination of All Forms of Discrimination against Women(CEDAW)
India ratified this convention in 1993. Countries that ratified should adhere to the requirement of getting rid of any laws or practices that degrade the lives of women. It condemns all kinds of discrimination against women. It prioritizes overall well-being of women. Forceful unnatural sex is harmful to a woman’s body, and forcing her to participate in the sex affects her mental and physical well-being.
UNNATURAL SEX
To know the density of the issue in question, one must understand the concept of unnatural sex.
Previously, the term was defined and criminalized under Section 377 of the IPC. It stated that, “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal is said to have performed unnatural sex”. The punishment prescribed for this act was imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Under this section, sexual acts between two men or two women were considered unnatural and, therefore, punishable. This later was struck down in the case of Naz Foundation v. Government of NCT of Delhi, where it was upheld that consensual sex between any two people cannot be a crime. This judgment was overturned by Suresh Kumar Koushal v. NAZ Foundation & Ors., benched by Justices G.S. Singhvi and S.J. Mukhopadhaya, claiming that the section did not target a specific group but certain sexual acts that are considered against the order of nature. The phrase “against the order of nature” encompasses lesbianism, bestiality and sodomy. This judgment received so much dissent from the public, stating that it fostered discrimination against homosexual people and was violative of Article 14, 15 and 21.
The whole commotion surrounding unnatural sexual acts came to an end in the judgment of Navtej Singh Johar v. Union of India. It decriminalized sex between same genders if it were consensual. The parts of section 377 governing sex with minors, non-sensual sex and bestiality remained enforced. BNS does not include a provision on unnatural sex.
Apart from sex between the same genders, it includes any penetration that is either not penile or that happens in an area of a woman that is not her vagina.
RIGHTS OF WOMEN
Women are entitled to protection of law. Article 15, which deals with prohibition of discrimination, proscribes discrimination based on sex. No woman shall be treated with less respect or given fewer rights than a man. This is what the law says. But, are all women treated equally? Are all women given equal protection among themselves? All women are equally entitled to their bodies and should have equal autonomy in taking decisions over the same. But, it has been observed that women are given different degrees of bodily autonomy based on their marital status.
MARITAL RAPE
Acts of forced sexual contact, including but not limited to vaginal penetration, is considered rape. Marital rape is when a husband has sexual contact with his wife against her will. That is what happened in the case discussed before. The husband performed unconventional form of sex with his wife without her consent, causing her excruciating pain. She was gravely injured in the process and later died at the hospital. Yet, it was held that the man was not guilty of rape and culpable homicide that is not murder. This judgment sparks concern over the loopholes that the legality of marital rape creates. The heinous non-consensual act of anus penetration, that costed the victim’s life, was excused only because of the fact that the accused was the victim’s husband. This clearly shows that the law puts more focus on the accused rather than relief to the victim. The judgment highlights the immune that is given to a husband in cases of sexual abuse but not what befell the victim. The occurrence of a woman’s brutal death was overshadowed by the very law that was needed to prevent it.
CURRENT STATUS OF THE ISSUE OF MARITAL RAPE
The Supreme Court, in October 2024, denied hearing petitions seeking criminalization of marital rape. The former Chief Justice D.Y.Chandrachud refused to discuss the matter before his retirement on November 10, 2024. The petitions seek to repeal Exception 2 of Section 63 of the BNS, which provides exemption to a husband in sexual abuse of his wife.
In a latest affidavit filed by the Centre, it was said that punishing non-consensual sexual acts within married couples would profoundly impact the conjugal relationships, which would lead to “serious disturbances” in the institution of marriage. But the Centre fails to understand that the presence of forceful sexual acts is the serious disturbance in a marriage, which would lead to an unhealthy and toxic relationship between the couple in matrimony.
SUGGESTIONS
Marriage to women should not mean waiving her basic human rights. A woman being depraved of her fundamental rights after she gets married stands against everything that justice represents. The institution of marriage should mean security, reliability, dependency and comfort. The current law in place, with regard to the status of marital rape, acts as a deterrent for women to trust men enough to get married to them. Judgments like these create apprehension in a woman’s mind about marriage. They also create the notion that women are regarded with their relations to men but not as an independent individual.
The laws of a country represent its beliefs and values. Our country has come a long way in development. But it is still stuck behind in the development of its law and people. The laws need to be refined into fairer and more reliable principles. Violent actions of a man in any form against any woman, irrespective of her relation to him, should be penalized. Criminalization of marital rape is proven to have worked in many developed countries the US, the UK, Australia, Germany and more. Some might argue that western ideas may not always work for India, but it is not a foreign idea for our country to respect and value women. In fact, India is a country known to perceive their women as goddesses. The country will rapidly progress in human development and woman empowerment if it implements this perception.
CONCLUSION
Despite the increasing sexual autonomy, our legal system continues to overlook the problem of marital rape. Marital rape enables a husband to profoundly harm his wife sexually, that can even lead to her death, and still not be considered a criminal. Most of the sexual abuses happen within marriage and it is statistically shown that only 10% of victims file spousal abuse complaints. Many cases of marital rape are neglected as they are not considered “rape”. Despite the evidence of unfavourable effects of marital rape on the mental health of victims, rape within marriage is greatly unaddressed by scientific research and public health surveillance. Recognizing marital rape as an offence is not only to ensure justice but also to disable beliefs, which are prevalent in the society, that propel such offence. It is imperative to impart education and conduct Awareness campaigns to challenge societal attitudes that normalize these actions. A change is only possible when the people recognize the injustice around them. Legal reforms should make sure that victims have access to justice. The struggle against marital rape needs a multi-faceted approach of societal shift, fortification of legal system, spreading of awareness and providing adequate resources to the victims. By addressing this issue holistically, we can nurture a society where consent is highly regarded and everyone is given equal rights and protection regardless of their marital status.
Padmaja E
VIT School of Law, Chennai