|Legal provisions regarding marital rape
|Issues with marital rape exception
|Lack of criminalisation of marital rape as a fundamental rights’ violation
|Why marital rape should be criminalized?
|Does criminalising marital rape create a new offence?
In India, the concept of marital rape has always been very complex, with many laws and verdicts being passed over the ages but not amended. A husband cannot be guilty of rape with his lawful wife. Marital rape is a violation of the fundamental right of a woman specifically under Articles 14 and 21 of the Constitution of India. Section 375 of the Indian Penal Code,1860 defines rape and considers it as an offence. Whereas, there is an exception in (2) of Section 375 which states that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. The lack of criminalisation of marital rape infringes the fundamental rights of a woman. Marital Rape should be seen as Rape and it should be criminalized. While there have been many petitions before the courts of India to criminalise marital rape, most have been silenced or dragged on for years without any meaningful verdict.
Fundamental right to life, right to privacy, right to equality, marital immunity, sacrament, intelligible differentia.
Marital rape is a term which is used to describe a sexual act committed by the husband without the wife’s consent. Usually, some husbands sexually exploit their wife to prove their dominance and strength. This forceful act violates the basic fundamental rights of the women in our country.
The fundamental right to life and fundamental right to privacy is violated when the husband isn’t considerate of the wife’s personal space and does not take her into consideration. Right to equality is also violated when marital rape is not seen as a type of rape. In India, this situation has reached its peak and should now be considered as an offence with serious punishments. Thus, it is important to criminalize marital rape in India.
Marital rape refers to rape committed when the perpetrator is the victim’s spouse. The definition of rape remains the same, i.e., sexual intercourse or sexual penetration when there is lack of consent. Therefore, an essential ingredient to prove the crime of rape is to prove the lack of consent. This burden to prove the lack of consent often rests on the victim. In some instances, as in the case of minors, it is presumed that consent does not exist as they are presumed by law to be incapable of consenting to such sexual acts. On the other hand, there are also instances when consent is presumed to exist. Often, this presumption exists when the victim and the perpetrator are married. In such instances, the idea of marital rape becomes antithetical.
The grounds for “marital immunity” for rape prosecution have emerged from the patriarchal discourse in society. According to which, a husband cannot be guilty of a rape committed upon his lawful wife because she has given up herself in this kind to her husband by their mutual matrimonial consent and contract, which she cannot retract.
At present, only fifty-two countries have laws recognising that marital rape is a crime. In many jurisdictions across the world, including India, marital rape is not recognised as a crime by law and society. Even when countries recognise rape as a crime and prescribe penalties for the same, they exempt the application of that law when a marital relationship exists between victim and perpetrator. This is often called the ‘marital rape exception clause’.
Under the impact of the second wave of feminism in the seventies, Australia became the first common law country to pass reforms in 1976 and after it, many Scandinavian and European countries made rape in marriage a criminal offence.
LEGAL PROVISIONS REGARDING MARITAL RAPE:
Section 375 of the Indian Penal Code,1860 defines rape and considers it as an offence. Whereas, there is an exception in (2) of Section 375 which states that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Section 198 (6) of the Code of Criminal Procedure states that there should be no offence taken under Section 376 of the Indian Penal Code, 1860 where such offence consists of sexual intercourse by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.
These sections normalize the marital rape culture which is supposedly ‘not’ normal and should be struck down so that the normalization of the marital rape culture stops. In the eyes of law, marriage is considered as a shield and sanctity. Thus, these provisions do not deal with marital rape. Hence, India needs specific provisions for the victims of marital rape.
ISSUES WITH MARITAL RAPE EXCEPTION:
- Against Basic Rights of Women: This exception clause violates the women’s fundamental right to equality, freedom of speech and expression, and most of all the right to life and personal liberty. It also denies the agency over their own bodies to women.
- Dismal State of Judicial System: Some of the reasons for low rates of prosecution in the cases of marital rape in India include:
- Low reporting of crimes due to societal conditioning and low legal awareness.
- Inaccurate method of collection of National Crime Records Bureau (NCRB) data.
- Out of court settlements due to the lengthy process of justice/lack of admissible proof.
LACK OF CRIMINALISATION OF MARITAL RAPE AS A FUNDAMENTAL RIGHTS’ VIOLATION:
Marital rape is also a violation of the fundamental right of a woman specifically under Articles 14 and 21 of the Constitution of India. The lack of criminalisation of marital rape infringes the fundamental rights of a woman. Even though this crime of marital rape occurs within the private sphere of a marriage, it is the responsibility of the State to penetrate through this private sphere. If the State does not penetrate this private sphere, then a woman is left without remedy when raped by her husband.
Even though the law treats a married woman and an unmarried woman different with respect to their rights, it would not be in violation of Article 14 since marriage serves as a reasonable classification. It is important to note that the argument is not that rape per se is not unconstitutional, but rather that marriage satisfies the criteria laid down for reasonable differentia under Article 14 of the Constitution. Therefore, despite rape being a violation of Article 21, it is justified when it is ‘marital’ rape since it amounts to a reasonable classification.
WHY MARITAL RAPE SHOULD BE CRIMINALIZED?
Marital rape should be considered the same as rape. Emotional consequences of both the crimes are the same, thus the provisions of punishment should also be the same. Rape is considered as the most agonizing amongst all the acts of crime committed against a woman.
A marriage should not be considered as a permit by a man to satisfy his legal desires. It greatly affects the self-respect and dignity of a woman. Not considering marital rape as a punishable offence is the same as forcing a rape victim to sleep with the rapist on the same bed every night. This is not only a question of law but, more importantly, an appeal for humanity.
According to the statistics, marital rape is more common in the rural areas where marriage is considered as a free pass to commit this crime. Rape, being one of the most outrageous crimes, puts a girl’s life to threat, because of which the rapists get either a life imprisonment or a death sentence. But it is not the same in the case of marital rape. The only way things can change is when we are successful in changing the mindset of the people who normalize the culture of marital rape.
Article 14 and 21 of the Indian Constitution states the right to equality and right to life respectively. Marital rape violates both these fundamental rights and also the right to privacy to an extent. The Puttaswamy judgement made it very clear that the fundamental right to privacy of every individual is guaranteed by the Constitution of India within Article 21 in particular and part III as a whole.
There have been cases where our law thinks that marriage is of the utmost importance and it shouldn’t be destroyed. In the case of Harvinder Kaur vs. Harmender Singh, AIR 1984 Delhi 66 the Court commented upon the applicability of the constitutional rights, mainly that of Article 14 and Article 21 within a family. It stated that the introduction of Constitutional Law in the home is inappropriate.
This case was later challenged in another case of Sareetha vs. T Venkata Subbaiah, AIR 1938 AP 356 failing to improve the situation. The Apex Court then later commented upon the same matter in the case of Saroj Rani vs. Sudarshan Kumar Chadha, 1984 AIR 1562 where it was held that the introduction of the equality clause within home will destroy the institution of marriage.
While there have been many petitions before the courts of India to criminalise marital rape, most have been silenced or dragged on for years without any meaningful verdict. The Apex Court has held that there were no grounds for the court to strike the exception down, which was justified under Article 14, because there was an intelligible differentia created by marriage.
In 2015, a petition filed by a woman in the apex court was dismissed on the ground that law can’t change for one woman. In Arnesh Kumar v. State of Bihar, the court had observed that criminalising marital rape will be the collapse of the social and family systems amidst the already existing biased laws.
The Indian judiciary has often perceived criminalising of marital rape as a way to destabilise the foundation of marriage. However, the exception to Section 375 often runs against Section 498A, which makes cruelty against a wife by a husband or relative of a husband a punishable offence. In 2016, Union minister for women and child development Maneka Gandhi stoked a controversy when she said in Parliament that there cannot be a law against marital rape because marriage is a “sacrament”. An amendment, was, however, made in 2013, that recognised the rape of women between 12 and 15 years of age as punishable under the act, although it fails to consider the substantial damages done to victims above the given age in marriage. The UN Committee on Elimination of Discrimination against Women also recommended that the Indian government criminalise it.
The Court censured the ‘implied consent’ in a marital relationship in Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018). It explained that “dehumanised treatment of women will not be considered acceptable” and also that “marital rape is not a privilege of the male partner in a marriage, but instead a violent conduct and an unfair treatment that should be criminalised.”
Another significant judgement came in the year 2021 when Kerala High Court ruled ‘marital rape as a valid ground for divorce.’ “Treating your female partner’s body as something owed to the husband and engaging in sexual acts against her consent or will is nothing more than marital rape,” the Court ruled.
DOES CRIMINALISING MARITAL RAPE CREATE A NEW OFFENCE?
A fundamental question that the court has asked is whether striking down the exception of marital rape would create a new offence, since husbands who have non-consensual sex with their wives could be convicted for rape.
Some argue that striking down the marital rape exception does not create a new offence. The offence of rape already exists in Section 375. What removing the exception would do is just remove the protection married men receive from being prosecuted for rape. They also rely on a decision of the United Kingdom’s highest court from 1991 that said that striking down implied sexual consent in marriage does not lead to creating a new offence. Legal academicians have also pointed out that striking down the exception only removes an immunity that is based on unconstitutional grounds for married men to avoid prosecuted for marital rape. However, the function of criminalising marital rape should come from the legislature and not the judiciary.
The research methodology used in this research paper is done purely doctrinal. Various articles were read from different E-newspapers, journals, published articles, law reviews and blogs which has been referred below.
A model should be proposed to criminalise marital rape. The exception clause under Section 375 of IPC should be deleted. The relationship of husband and wife between the accused and the woman should not be a defence for marital rape. The sentencing policy should be made the same as in case of Rape.
The exemption clause in Section375 of the IPC as it stands today, is unconstitutional. This is because it fails the equality test as given in Article 14. In addition to this, there are not any effective alternatives in law, and further the focus should not be on alternatives but rather on criminalising it. It would be difficult to say whether marital rape in India would be a criminal offence or not as it is both beneficial and annoying. What good is it if a married woman is raped by her husband and then punished for assault and not rape? The investigation may say how long the wife was raped but the investigation cannot tell us how she was abused in the last few days or months or sometimes even years. Even if the husband does the same thing it is a crime for his wife who should protect him and not endanger his life or violate his dignity or degrade him in any way. He must be punished for what he has done to the human body. We cannot measure the wounds (physical and mental) that he has caused and no one can compensate us for these acts. We should support such women because not all abused women choose to talk about her abusive relationships. We as respected citizens of India should help her, comfort her, guide her and in this process protect another woman.
Hence, the second release granted under Section 375 of the Indian Penal Code, 1860 should be amended by amendment to protect the Indian woman from marital rape. These sections normalize the marital rape culture which is supposedly ‘not’ normal and should be struck down so that the normalization of the marital rape culture stops. In the eyes of law, marriage is considered as a shield and sanctity. Thus, these provisions do not deal with marital rape. Hence, India needs specific provisions for the victims of marital rape. It is time for the Indian authorities to take action and issue a landmark ruling on marital rape.
- CRIMINALISATION OF MARITAL RAPE IN INDIA: UNDERSTANDING ITS CONSTITUTIONAL, CULTURAL AND LEGAL IMPACT (manupatra.in)
- Criminalising Marital Rape (drishtiias.com)
- Explained: Indian Legislature’s Stand About Marital Rape, A Non-criminalized Crime In India (indiatimes.com)
- Prof. S.N Misra, The Indian Penal Code, 1860, Central Law Publications,20th edition
- Marital rape: SC to hear pleas arising out of Delhi HC’s split verdict on September 16 | India News,The Indian Express
- Explained | Marital rape in India: The history of the legal exception – The Hindu
Shreeja Dayananda K
4th year Bcom.,LLB,
BMS College of Law, Bengaluru.