MARITAL RAPE IN INDIA
“When a woman is raped by a stranger, she has to live with a frightening memory. When she is raped by her husband, she has to live with the rapist.”
– David Finkelhor and Kersti Yllo
ABSTRACT
In this article, the author talks about the history and the current legal status of marital rape in India and the constitutional validity of section 375 of the Indian Penal Code. It reflects the prevalent injustice faced by women and status of protection of their Fundamental Rights enshrined in the Constitution of India. The paper also focuses on various legal and social aspects of criminalising marital rapes in India. This paper highlights the views of Indian Judiciary on the need to criminalise marital rape laws in India. The author also provides her opinion on need for gender neutral laws in the country for the purposes of Article 14 of the Constitution of India.
KEYWORDS
Rape, marital rape, criminalisation, constitutional validity, sexual offences, gender neutrality, fundamental right
INTRODUCTION
The definition of “rape” is defined under section 375 of the Indian Penal Code, 1860.[1] It refers to an unlawful or forceful sexual intercourse by a man with a woman against her will, without her consent or with her consent by means of threat, misrepresentation, fraud, or at the time when she has been intoxicated or by reason of unsoundness of mind she is unable to understand the nature or consequence of her consent; and in any case when she is below 18 years of age.
The term “marital rape” is used to describe an act of unlawful and forceful sexual intercourse by a man with his wife against her will and free consent.
However, the offence of marital rape does not come under the ambit of section 375 of the Indian Penal Code. In exception 2 of this section it is stated that sexual intercourse or sexual acts by a husband with his wife, the wife not being under 15 years of age, is not rape.[2]
The offence of rape which is a crime under the Indian Penal Code, ceases to be crime just because of the marital relationship of the victim with the accused. This clearly reflects the inequality and injustice faced by married women who are suffering from sexual abuse by their spouse. The victim has to live with the accused for all her life.
Back then in 1860, when section 375 of the Indian Penal Code was made, the understanding of marriage was different. But now with time we have developed better understanding of marriage and consent. Consent is the most essential factor before performing any kind of sexual activity. Non – consensual sex or forceful sex by the husband is not considered as rape and has not been criminalised in the country yet.
As of 2019, around 150 countries have criminalised marital rape[3]. India is among the other few countries which have decriminalised marital rape unless the wife is under 15 years of age as mentioned in the Indian Penal Code.
RESEARCH METHODOLOGY
This paper is of descriptive nature and the research is based on secondary sources’ data for deep analysis of marital rape in India. Secondary sources like journals and websites are used for collecting information in this research.
REVIEW OF LITERATURE
Marital Rape: Supreme Court seeks government response in appeal against Delhi High Court’s split verdict, Bar and Bench, By Debayan Roy, 16 September 2022.
In this article the Delhi High Court’s split verdict on the bunch of petitions filed regarding marital rape laws have been discussed. It also discuss the view of government and Supreme Court in need to criminalise marital rape.
Why India’s law still allows men to rape their wives (2023), THE WEEK, By Vinod V K
This article mainly focussed on the recent filed petitions demanding criminalisation of marital rape amd the views of Indian Judiciary in the matter of marital rapes and need to criminalise it.
Rape for purpose of MTP Act includes marital rape; married woman can seek abortion of pregnancy from forced sex by husband; Supreme Court, Bar and Bench, By-Debayan Roy, 29 September 2022
This article discusses the rights of women under various laws in India and marital rape in relation with the MTP Act. This paper also tells about the status of marital rape laws in various countries around the world.
Marital Rape: Analysis of legal provisions, Volume 1 Issue 2, Burnished Law Journal, By-Jahanvi Bharadwaj, 2020
This paper focuses on the violation of Fundamental Rights of women guaranteed under the the Indian Constituion and examines the constitutionality of section 375 of the Indian Penal Code.
HISTORY OF MARITAL RAPE
In the ancient times, women were regarded as the property of their father / husband. And if anyone raped a woman it was meant as vandalising or razing the property of her husband or father. Rape was regarded as a crime not against the woman but against her husband or father.
In Babylonia, 1900 BCE, rape with someone’s wife or daughter was sentenced by death. As it was opined that a daughter or wife is an estate of the father or husband; therefore, rape was deemed as a property crime against the father / husband. This is the reason it is believed that after marriage the husband can’t rape with his wife because she is his property and he can do anything with her.
Even in British Era, during 1700s, rape laws were introduced with the vision that rape hinders with the sexual purity of a woman. Therefore with this thinking it was implied that a husband cannot violate the purity of her own wife.
Doctrine of Coverture:
Ever since the British Era a very conservative notion has been established that the recognition of a woman is due to his husband and that she is his property. According to this doctrine, a woman has no legal identity after marriage.
MARITAL RAPES IN INDIA
According to the National Family Health Survey 5, about one in three women between 18 & 49 of age have undergone some form of conjugal abuse, and nearly six percent have suffered sexual violence[4]. Among all the reports of sexual violence, around 82% were against the current husbands and 13% of the reports were against former husbands.
HISTORY OF MARITAL RAPE LAWS IN INDIA
JUDICIARY
- Delhi High Court
The Delhi High Court has been hearing arguments in this case since 2015. In January 2022, two judges bench of the Delhi High Court started to hear petitions challenging exemption of marital rape. By May 2022, they arrived at a split verdict. While one of the two judges was approved of criminalising marital rape because it takes away the women’s right to consent whereas the other judge was against criminalising, saying marriage itself is a consent. The matter was moved to the Supreme Court.[5]
- Supreme Court
In September 2022, a Supreme Court ruling on right to safe abortions in case of forceful pregnancy it was held that forceful pregnancy can be considered as marital rape pertinent to Medical Termination of Pregnancy (MTP) Act. It was held that under the MTP Act, a married woman striving abortion on account of marital rape has all the rights to do so.[6]
- Law Commission of India
The need to remove marital rape exemption was rejected by the Law Commission of India in 2000.
- Justice J.S. Verma Committee
In 2012, this committee was assigned with proposing amendments to the rape laws in India. Some recommendations turned into amendments like the Criminal Law (Amendment) Act passed in 2013, few suggestions including the ne on marital rape were not acted upon.
PARLIAMENT’S VIEW
This issue has been brought up in the Parliament as well but the idea was dismissed with the view that in our country marriage has been looked at as sacred or holy. And also the state cannot interfere in the personal lives of the citizens.
GOVERNMENT’S VIEW
The Central Government at first defended the rape exception and later changed the stand and told that they are reviewing the law.
IS MARITAL RAPE ILLEGAL IN INDIA?
No, marital rape isn’t illegal in India. In fact, it is excluded from the list of sexual offences mentioned in the Indian Penal Code, unless the wife is below 15 years of age.
Exception 2 of section 375 of IPC clearly states that “sexual intercourse by husband with his wife, wife not being under 15 years of age, is not rape.”[7]
INDIAN LAW ON MARITAL RAPE
Section 375 to 376E of the Indian Penal Code constitutes sexual offences acts. Section 375 talks about rape. Apart from providing definition of rape, section 375 of IPC decriminalises marital rapes in the nation.
- Section 375 of the Indian Penal Code:
● Section 375 defines the offence of rape as unlawful sexual intercourse by a man with a woman against her will and without free consent.
● However, there are two exceptions to this section
a) Medical procedures or interventions shall not constitute rape.
b) Sexual intercourse by a man with his wife, wife not being under 15 years of age, is not rape.
2. Domestic Violence Act, 2005[8]:
● It includes any form of sexual harm in a live-in or conjugal relationship.
● This Act only provides civil redressal. There is no path for marital rape victims to initiate criminal proceedings against their rapists in India.
CONSTITUTIONALITY OF MARITAL RAPE EXEMPTION
The exemption of marital rape from the list of sexual offences mentioned in the Indian Penal Code is violative of various Fundamental Rights guaranteed under the Indian Constitution. Besides Fundamental Rights, the exception clause in section 375 also contradicts section 498A of IPC.
Violation of Right to life
The Fundamental Right to Life and personal liberty guaranteed in Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[9] This right is violated by causing sexual or physical abuse to the wife and threatening her.
Violation of Right to Privacy
Right to life and personal liberty includes Right to privacy as an integral part. The right to privacy of the wife gets violated when the husband forces himself on her and doesn’t consider her no as no. This is clearly a trespass in her personal space.
Violation of Right to Equality
The right to equality is ensured under Article 14 of the Constitution of India. This article states that “The State shall not deny to any person equality before the law or the equal protection of laws within the territory of India.”[10] The exception clause in section 375 of IPC violates this Article as there is discrimination against the consent of married and unmarried women for sexual intercourse. The rape against the unmarried woman and married woman under the age of 15 years is considered as a crime but the rape of married women above the age bar by their husband is not a crime. This is an infringement of the Right to Equality of married women.
NEED TO CRIMINALISE MARITAL RAPE IN INDIA
- Against Human Rights Direction
Marital rape is a non-consensual sexual act. The right to consent of the woman is taken away and she faces sexual abuse. She has to live in threat . This is clearly the violation of her basic human rights along with her Fundamental Rights.
- Violates Article 14 of the constitution
Every person has been guaranteed with the right to equality under Article 14 of the Constitution but the exception 2 of the Indian Penal Code discriminates between marries and unmarried women. Rape should be a criminal offence despite of the marital status of the victim with the accused.
- Violates Article 21 of the constitution
The Article 21 of the Indian Constitution guarantees right to life and personal liberty to all and the right to privacy also comes under the ambit of this article. For the purpose of this Article the decriminalisation of marital rape under the Indian Penal Code is a clear violation of the Fundamental Right to Life and Personal liberty of married women.
- Marriage is not an implied consent
Many people view marriage as an implied consent for performing sexual intercourse. Thus criminalising marital rape would clear this misconception and prevent women from suffering sexual abuse in the name of marriage.
PROS AND CONS OF CRIMINALISING MARITAL RAPE
Following are the pros and cons of criminalisation of marital rape in India:-
Pros :
- It will prevent the infringement of right to equality of women
- It will protect the right to life and personal liberty of women
- It will prevent the violation of bodily autonomy of women and right to dignity.
- It will help women seeking justice irrespective of their marital status.
Cons:
- Misuse of marital rape laws would happen and will be unfair for the husbands.
- It would hinder and destabalise the institution of marriage.
- Lack of gender neutral laws will amount to violation of Article 14.
- Burden of proof will exist due to lack of evidence.
- So many false cases would be filed.
AMENDMENTS IN RAPE LAWS IN INDIA
Ever since the independence, there have been some changes made in the rape laws in India which are discussed below:
- Criminal Law (Amendment) Act, 1983
This amendment was made after the famous Mathura Rape Case. It brought various changes to the rape laws including the addition of section 376A that is punishment for a man having sexual intercourse with his wife during judicial separation and it also added section 376(2) that is custodial rape along with section 228A that is punishment for anyone who discloses name or any kind of recognition of the victim without her consent. This amendment clarified the definition of rape and consent.
- Criminal Law (Amendment) Act, 2002
Through this amendment, section 155(4) of the Indian Evidence Act was omitted, which says that “if a man is prosecuted for rape or attempt to ravish, it may be shown that the prosecutrix was of generally immoral character ”; with the aim of prohibition of character assassination of the victim.
- Criminal Law (Amendment) Act, 2013
This amendment expanded the definition of rape to include oral sex. It also added ‘insertion of an object or any other body part into a woman’s vagina, urethra or anus will amount to rape.
- Criminal Law (Amendment) Act, 2018
This amendment increased the minimum sentence for rape of women from 7 years to 10 years; and minimum imprisonment of 20 years in case of rape or gang rape of girls underneath 12 years of age (which is extendable to life imprisonment or death sentence).
INDIAN JUDICIARY ON MARITAL RAPE
Justice J.B. Pardiwala
In the case of Nimeshbhai Bharatbhai Desai vs. State of Gujarat[11], Justice J.B. Pardiwala said that, “A wife is not a chattel and a husband having sexual intercourse with his wife is not merely using a property, he is fulfilling a marital duty with a fellow human being with dignity equal to that he accords himself. He cannot be allowed to violate this dignity by forcing his wife to engage in a sexual act without her full and free consent.”
“Under the MTP Act, rapes shall also comprise marital rape; sexual assaults by husbands might take a form of rape”, said Justice D.Y. Chandrachud in a case of abortion against forceful pregnancy.
Whereas The Kerala High Court gave a landmark verdict and ruled out that marital rape is a solid ground for divorce. And the Karnataka High Court, on March 23, 2022 held that the exception under section 375 of the IPC is not absolute and that the husband can still be prosecuted.
“The institution of marriage does not confer, cannot confer and should not be construed to confer, any special male privilege or a license for unleashing of a brutal beast”, said Justice M. Nagaprasanna.
Justice J.S. Verma Committee (2013)
After the Nirbhaya case, this committee suggested that marital rape should be criminalised too. But the Parliament’s standing committee refused by saying that this would stress out the family system of India & the marriage instituion and this would also develop anarchy in India. The Parliament’s standing committee rejected the proposal on the following grounds:-
- It would destabalise the marriage institution.
- There would be burden of proof in the cases of marital rape as there would be lack of proper evidence
- The criminalisation of marital rape would be highly misused and this could bring up a lot of false cases.
- Marriage is considered to be an implied consent for sexual activity in the society.
CASE LAWS ON MARITAL RAPE
- Sakshi vs. Union of India (2004)[12]
In this case the question was raised that why sexual intercourse without the consent of the wife is not considered to be a punishable offence. But, here in this case the Supreme Court upheld the existing definition of rape given under section 375 of the Indian Penal Code. And also held that no alteration to be done to section 375.
- Independent Thought vs. Union of India & Anr. (2017)[13]
In this case an NGO filed a petition challenging exception 2 of section 375 of IPC. Here, the Supreme Court increased the age in section 375 from 15 years to 18 years but the age in exception 2 is the same till date. Also the Supreme Court did not consider married women victimised of marital rape.
ISSUES IN CRIMINALISING MARITAL RAPE
Criminalising marital rape would seriously affect marriage institution as it would be highly misused like section 498A of IPC. As whenever there would be a fight or any issue between the couple then the wife would try to use it as a weapon to take legal action. This would really be so unfair towards the husbands as there would be no proper evidence. No one can know if the sexual intercourse between a couple in private was with or without the consent. And if it would only rely on testimony of women then it would be injustice for the husbands.
But just because some offences are difficult to prove, we exempt it from considering it as an offence is paving way for injustice in the society. Therefore in criminalising marital rape proper guidelines for evidences, burden of proof and well set criteria is required for filing cases. And it would be very difficult for the Parliament to set the criteria and legislate laws on marital rape while preventing the misuse and injustice against the husbands.
SUGGESTIONS
- Making gender neutral laws. Misuse of gender neutral law is less as compared to gender specific law:
Misuse of gender neutral laws are less as compared to gender specific laws. The Parliament should focus on making the crime of rape gender neutral and then they should criminalise marital rape in such manner that it is not biased on the account of gender of the spouse.
- Make provisions to stop misuse of law:
There are high chances of misuse of marital rape law; therefore provisions must be made regarding prevention from injustice or misuse of the law.
- Strict punishment for filing false cases:
There must be strict punishment for anyone who files false case against their spouse. The punishment can be fine along with jail and the accused in false cases should be granted divorce, if they want.
- Proper guidelines for evidences must be framed:
Burden of proof and lack of evidences are the major drawbacks while criminalising marital rape ; therefore before criminalising it, proper and strict guidelines must be framed for collecting and presenting evidences in the court of law.
- In no manner or situation, the Article 14 of the Indian Constitution of India should get violated:
The Article 14 of the Indian Constitution guarantees to all the right to equality. Therefore the parliament should focus on amending rape laws in such manner that it should not discriminate on gender or marital status of the individual.
CONCLUSION
Marital rape is a heinous offence equivalent to rape. Mere change in the marital status of the woman should not prevent her from enjoying her bodily autonomy, right to life, personal liberty, dignity and most importantly right to equality. This issue needs to be addressed socially as well as legally. Even though the task of legislating laws on marital rape and setting the criteria for evidence and burden of proof is very difficult for the parliament; but just because some offence are difficult to prove, their exemption from being an offence is a huge injustice to the society and the victims.
Laws regarding marital rape are required but the authorities should make sure that in no way article 14 of the constitution should get violated. The in demand marital rape laws should be framed in a way that they are gender neutral and does not violate thr right to equality for men. Before doing that the existing rape laws in India are required to be made gender neutral.
The justice will not prevail in the society unless there is equality before law and equal protection of laws as protected under Article 14 of the Constitution of India. Therefore gender neutral laws are need of the hour.
BY GAURI DANGI
INDORE INSTITUTE OF LAW
[1] Section 375, The Indian Penal Code, 1860.
[2] Supra Note-1.
[3] ‘SC’s Observations ‘Welcome’ But Marital Rape Still Not Illegal In India, Here Are Countries Where It Is’, Outlook Publishing India Pvt. Ltd., By-Outlook Web Desk, 30 September 2022, 3:16 pm, www.outlookindia.com.cdn.ampproject.org.
[4] National Family Health Survey (NFHS-5) 2019-21, Ministry of Health & Family Welfare, Government of India, https://main.mohfw.gov.in.
[5] ‘Marital Rape: Supreme Court seeks government response in appeal against Delhi High Court’s split verdict’, Bar and Bench, By-Debayan Roy, 16 September 2022, 11:33 am, www.barandbench.com.
[6] ‘Rape for purpose of MTP Act includes marital rape; married woman can seek abortion of pregnancy from forced sex by husband: Supreme Court’, Bar and Bench, By-Debayan Roy, 29 September 2022, 12:27 pm, www.barandbench.com.
[7] Supra Note-1.
[8] The Protection from Domestic Violence Act, 2005.
[9] The Constitution of India.
[10] Supra Note-9.
[11] Nimeshbhai Bharatbhai Desai VS. State of Gujarat, 2018 SCC OnLine Guj 732.
[12] Sakshi vs. Union of India (2004) 5 SCC 546, AIR 2000 SC 3479.
[13] Independent Thought vs. Union of India (2017) 10 SCC 800.