ABSTRACT –
Section 375 of Indian Penal Code, 1860 and now section 63[1] of Bhartiya Nyaya Sanhita defines and criminalizes Rape as a forced sexual intercourse with women without their consent, aiming to protect women from falling victim to this violent act and preserving their dignity but at the same time, a section of women is not given the same consideration due to their status as married women, on the principle that at the time of marriage, they give their perpetual consent to have sex with their husbands. One of the exemptions to this criminal act of rape is marital rape clause which exempts husbands from being incriminated for sexually forcing their wives, thus acting as a safety net to do as they wish with the knowledge that they are immune. This paper explores how historical principles have paved the way for this exemption, rooted in implied consent theory and coverture doctrine. It also delves into the legal and societal ramifications of this exemption, exploring how it violates women’s right to equality, privacy and protection of violence as laid down in Indian constitution and further examining the reasons behind this inaction to remove the exemption clause from IPC such as violation of sanctity of marriage. It also analyses alternative provisions that addresses sexual violence and domestic abuse and highlights the urgent need to revoke this exemption from BNS section 63 through case laws. The paper closes off with suggestions as to how this discriminatory law can be done away with.
KEYWORDS –
Marital rape, implied consent, coverture, bodily autonomy, women’s right, Indian Penal Code, Legal Exemption
INTRODUCTION-
Rape in its most basic sense can be defined as a sexual act forced on a person, thus taking away their right to live a dignified life. In technical words, it can be defined as a sexual intercourse, or any other form of penetration forced on a victim without their consent. Rape is a derogatory practice which snatches away basic human rights of women by violating their body autonomy. In past, rape was perceived as a result of sudden, uncontrollable sexual desire but the understanding of the cause of rape has evolved over time and now it is looked at as a need to exert dominance and inflict hurt on victim by the means of sexual violence, with the intent to degrade and humiliate the victim rather than due to lust. Psychologically, it is said that perpetrator is motivated by some deep-seated issues such as feeling of inadequacy, anger or just a desire to feel powerful. The Indian Penal Code, 1860 defines rape under section 375[2] as performing any sexual activity involving any oral, vaginal or anal act without her consent or against any person lesser than the age of 18, without or without her consent. It was done so with the intent to promote justice and deter violent sexual activities against women. Now , this might make a person think that it is a fulfilling and ideal provision, providing women with protection against derogatory acts against them and makes them wonder “What could be the problem with this provision?”. But this is not the case in practice, especially considering the exemption provided in sub section (2) of sec 375 which 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”. And we are going to study how are rights of women affected by the exemption provided in section 375 of IPC that exempts marital rape from being criminalized and what are the social and legal implications of maintaining this exemption?
The reason behind this provision lies in the historical provisions such as the implied consent theory or the doctrine of coverture. Sir Matthew Hales, the then Chief Justice of England, proposed implied consent theory which states that husband cannot be held liable for committing rape against their lawful wife, as upon marriage, wife by their mutual consent gives herself to her husband in this kind and such consent cannot be retracted later. This theory essentially says that consent given at the time of marriage is perpetual which goes against the fundamental principle that consent must be continuous and voluntary in every sexual act.
The other such reason is the legal principle of coverture which basically means that once a woman is married, she has no separate identity, whether it be legal or economic, other than her husbands’. So, after marriage, wife and husband merges into one identity, thus, giving husband right over his wife’s body. So, it is clear that the foundation of this exemption lies in the historic status of the women where they were treated as no more than an object, a property, which makes it essential today to recognise marital rape as a grievous crime, as women are attaining more autonomy for themselves.
RESEARCH METHODOLOGY-
This is an analytical paper and secondary sources have been employed to analyse the current position of marital rape in India. This paper takes a qualitative approach by collecting articles written by NGOs, eminent people, and even other research papers already made in the area of marital rape exemption and this paper begins with extensive literature review to gather information on historical context, legal provisions, societal implications and also recommends some much-needed suggestion to alter the current policy dealing with the subject of marital rape along with taking notes of some important judgements delivered by high courts and Supreme court.
REVIEW OF LITERATURE-
This dark spot of allowing marital rape to continue in our country has followed us for centuries and with this dark spot, comes voices that protest against this. This protest has taken various shapes over the years, at first, women were considered no more than property but with their continuous struggles, their position in society started to elevate and along with that, their voices got louder and struggle against injustice more abundant. Historically, people used to use their swords to fight their battles but now, they take more efficient route and believe in apprising people of injustices suffered by oppressed through their writing. Thus, a lot of people have conducted research into how marital rape clause is stripping women away of their autonomy, how this exemption affects their position in society, not giving them the same protection of law against this cruel act, citing reasons such as once married, wife and husband are one legal entity and women is the property of their husbands. And certain authors have recommended suggestions such as court exercising their right under article 142 to do away with this injustice.
The paper by Dr Bhavish Gupta titled as “Marital Rape: Current Legal Framework in India and the need for change” calls our attention to the fact that whenever we hear the word rape, first thing that we think of is a stranger, not a known person and to think of husband as the perpetrator is unthinkable and how the rationale behind this exemption lies in the historical theories that have no bearing today. He further delves into how this clause is stripping women away of their basic rights such as right to equality, right to life and personal liberty etc and strongly recommends that it is time that our legislator and courts did something about this.
Another paper by Harleen Kaur titled as “Exception to marital rape in India: an unconstitutional intrusion into the victim’s right to equality and privacy” talks about continuous implied consent theory and draws a timeline as to when and which law commissions have recommended criminalizing marital rape, and which have not and the reasons behind such decisions. While outlining several important cases over the years concerning marital rape, it addresses a recent case where marital rape was recognised as a ground for divorce. While it is a progress, the author highlights that it is not enough, and the government and the courts need to take an action regarding the uprising acts of such cruelty and finishes this claim with some suggestions.
REASONS GIVEN FOR NOT CRIMINALIZING MARITAL RAPE
Now, the fact that marital rape still remains decriminalised in India, naturally, raises the question as to why the parliament hasn’t taken needed steps to criminalize, in the face of unconstitutionality of this clause. We also know after Nirbhaya case in 2012, we know that Justice Verma Committee not only gave recommendations to deal with workplace sexual harassment, but also suggested that marital rape be criminalized, and that marriage didn’t mean irrevocable consent. The government didn’t take the suggestion and time and time again have cited these reasons for not legalising the crime committed by husband on the person of their wife.
- Sanctity of marriage
That marriage is very sacred in India and criminalizing such act and interfering in the martial relationships could disrupt family harmony and traditional values, leading to the destabilization of society as it is not very conducive to interfere in the domestic matters. “In the case of the Harvinder Kaur vs. Harmander Singh[1], The Delhi High Court held that the Constitution of India could not intervene in household matters as it would destroy the institution of marriage. The court also stated, “in the privacy of the home and married life neither Article 21 nor Article 14 of the Indian Constitution have any role to play.”
- Legal complexity
Unlike relationship with strangers, it is very hard to prove the lack of consent owing to the intimate relationship between spouses.
- Fear of potential misuse
There is this fear always present in the minds of policymakers that wives can file fraudulent cases against the accused.
And in 2016, then Minister of Women and Child development2, Menka Gandhi said she wouldn’t recommend criminalizing marital rape as it cannot be applicable in India due to widespread illiteracy and privacy in this country.
ALTERNATIVE PROVISIONS USED TO INDICT IN CASES OF MARITAL RAPE
Considering that marital rape hasn’t been recognised in Indian Penal Code, the lacunae has been tried to be filled with alternative provisions in Indian law to maintain a fine balance, even if unsuccessfully if the report released by NHFS is anything to go by. The report released by National Health Family Survey in 2015-2016 reports that out of all the married women that has reported sexual violence, 83% called their current husband a perpetrator. Some of such provisions are-
Protection of Women from Domestic Violence Act, 2005-
This provision works like a framework to address the matters of domestic violence, such as emotional, economical, physical abuse and this act also includes sexual abuse as a part of domestic violence. But this provision still doesn’t address the need to criminalize marital rape, but rather providing protection and remedies to women facing abuse in their marriage, either from women or their in-laws. The downside to this law as an alternative is that it is a civil law and doesn’t necessarily criminalize the domestic abuse or sexual abuse for that matter.
Section 498 (A) of IPC-
This section pertains to the cruelty committed by husband or his relatives against a wife. It addressed mental and physical cruelty which encompasses the matter of sexual violence in its ambit, but this section still doesn’t acknowledge outright that marital rape is a crime and does nothing to deter the husbands in future from committing such heinous act again.
Section 376 (B) of IPC-
This section deals with the rape committed by husband against his spouse without her consent during the period they are living separately but it is still discriminatory in nature as the punishment only ranges from 2 years to 7 years as against the minimum 7 years extending to life imprisonment as provided for the crime of rape dealt in section 375.
Section 354 of IPC-
This section deals with assault or criminal force against women with the intent to outrage her modesty. This section is also invoked on occasions when courts are dealing with the case of sexual aggression and violence as can be section 377 which deals with unnatural offences.
RIGHTS VIOLATED BY MARITAL RAPE CLAUSE-
Today, marital rape is criminalized in 150 or so countries but India is amongst odd 34 countries left which have not yet recognised the right of married women to the autonomy of their own body as of 2022. This action or more accurately, this inaction by parliament violates basic following rights[3] of the women-
Right of equality under article 14-
As we know, only rape against married women, known as marital rape, is the only kind of rape, which is not recognised in India, thus, discriminating against married women which again invokes article 15 which provides protection against any discriminatory practices. While unmarried women enjoy protection against rape under IPC, married women are not just left hanging, but heavily discriminated against. Any provision given under article 14 has to stand constitutionality test which basically says there has to be a reasonable cause for any discrimination against different group of people. Now, it is argued that the relationship between a married couple is enough that married women make for a different class of women, separate from unmarried. But this argument is flawed and repressive in nature as it implies that women lose autonomy on their own body and right to be protected from sexual aggression, once they are married. Also, it is discriminatory that while courts recognise that if couple is separated at the time the act is committed, it would be considered as rape, the punishment is far lesser than what is considered for rape.
Right to privacy-
In K.S. Puttaswamy v. UOI, the bench declared that right to privacy will be considered a fundamental right. And in a recent judgement, Court said that right to privacy includes right to sexual privacy, also includes right to sexual privacy, which means that women have the right to their bodily autonomy and individual privacy. In simple words, it means that people have the right to make a decision about their own bodies, which would include the matters pertaining to sex and reproduction. The marital rape exemption is violative of this as it takes away women’s right to make a decision if they want to engage in sexual activities or not, taking away their right to make decision about their own bodies.
Right to life and personal liberty-
Article 21 talks about the right to life and the freedom to make choices, not harmful to others. But the right to existence in this just doesn’t stand for right to animal existence but to a dignified life as was affirmed in the case of Bandhua Mukti Morcha v. Union of India. So, the right to dignified life would include right to privacy, which means to make their own decisions about their own body without interference which the exemption violates by forcing the married women to have sex with their husbands. Also, it includes the right to bodily self-determination which implies that women have control over their own bodies and what they do with their bodies which again is breached as they are stripped of this autonomy and also are stripped of the right to good health which involved mental health.
IMPORTANT CASES DEALING WITH THE QUESTION OF MARITAL RAPE-
In 2017, in the case of Independent Thought v. Union of India[4], the court acknowledged as proposed by the non-governmental organization that the exemption is discriminatory to minors as it was violative of right to equality, right to a dignified life for the minors from age of 15 to 18 as exemption allowed for sexual intercourse with a wife who is not under 15 years of age. It was also contradictory to Protection of Children from Sexual Offences Act, 2012 which holds a child as a person below 18 years of age and criminalizes all sexual offences against children, no matter the marital status. So, for the first time, it was held that exception to the section 375 which allows for sexual intercourse with a child above the age of 15 was unconstitutional but it was only extended to minor below 18. So, despite this small victory home, the martial rape for women considered adult still goes unpunished and exempted.
Interestingly, in the case of X v Principal Secretary, a case related to medical termination of pregnancy, the court held that a pregnancy of a married woman due to sex forced on her by her husband can be treated as rape and such pregnancy can be considered for medical termination under the right to abortion extended to unmarried women in Medical Termination of Pregnancy Act in September 2022.
As evident by the split verdict given in Delhi High Court, in response to the petition filed by an NGO RIT Foundation, where Justice Shakdher advocated for criminalization of marital rape as he says that this exception is unconstitutional as it violates woman’s bodily autonomy and expression while justice Shankar held it in the favour of status quo, citing that sexual relationships in the institution of marriage are very much a real thing, whether consensual or non-consensual, upholding the exception in a two judge bench case.
Recently, several petitions[5] have been filed before Supreme Court in which the constitutionality of exemption under section 375 of IPC have been questioned and it has been petitioned that this sub-section is stuck down in response to its retaining in new criminal law. This is still pending before Supreme court and one of the petitions is the appeal allowed by Delhi HC in split-verdict case. All India Women Democratic Association filed the petition to object the provision of the punishment of 2 to 7 years for rape of separated women which is lower than the standard 10 years in BNS, along with the exception. Another appeal was from a husband who was found guilty of raping his wife in Karnataka HC and the HC advocated for holding accused people accountable for rape in a matrimonial relationship too.
The National Family Health Survey found that between 2019-2021, 32% of married women experienced physical, sexual or emotional violence by their current husbands (15.6.1), and 82% of married women aged 18-49 who have experienced sexual violence reported their current husbands as the perpetrators which in itself is enough evidence to the need of protecting women’s right against this dehumanizing and humiliating act.
In a landmark ruling in 2021[6], Kerala HC held that while marital rape is not criminalized, it is still a form of cruelty and can be a ground for divorce by emphasizing the individual autonomy and privacy in marriage and specifically said that wife and a husband are equal partners in a marriage and the husband, whatsoever, has no right over his wife’s body.
And lastly in Nimeshbhai Bharatbhai Desai v. State of Gujarat[7], the bench observed that the marital rape exemption doesn’t hold true anymore , even if they couldn’t press rape charges because of the exemption clause, they observed that a woman is not a chattel anymore as the historical practices gave her the status of and the husband who is having sex with his wife is not using his property but rather fulfilling a marital consortium with a fellow human being who he should treat with equal respect and dignity as he treats himself and he cannot be allowed to violate this dignity by forcing sexual acts on his counterpart.
SUGGESTIONS-
- Following the example set by the majority of countries, marital rape should be clearly defined as a heinous crime and also should be recognised as directly a form of domestic abuse and cruelty under PWDVA,2005 and under section 498(A) of IPC as the argument presented that it would be interfering in matrimonial relationships is not valid as it has essentially done so in the cases of dowry, divorce etc.
- This change in law would address the assumption of women being the property of their husbands as advocated by the exemption and also, government should look into making shelter for victims of rape as many victims, whether in matrimonial relationships or not, don’t speak up for the fear of being abandoned by their families.
- Awareness camps should be carried out to spread knowledge about the crime and how the victims aren’t to suffer in silence and have remedies available to them and marital rape should officially be made a ground for divorce as courts are beginning to recognise this.
- If the legislators fail to achieve the just solution by criminalizing it, then the Supreme Court should exercise its exemplary power under article 142[8] which says that it can pass any decree necessary to achieve a just cause and strike down the exemption under section 375 of IPC.
CONCLUSION-
As we know by now, criminalizing marital rape is not only just a legal necessity but a moral need as it violates the fundamental rights of a married woman, reducing their status to a chattel and treating them as a class separate from unmarried women by taking away their bodily autonomy, even just offering limited protection to separated women. While alternative laws offer some protection, they still fail to address marital rape as something wrong, offering immunity to husbands in a relationship and playing a hand in making them feel safe enough to carry out the grave act and failing in this process to uphold the intent of section 375 of IPC which is to protect women from derogatory act which are protected by spouting reasons such as sanctity of marriage and are formed due to narrow-minded principles like implied perpetual consent and that woman doesn’t have an identity, separate from her husbands’. Not only the persistent reluctance of legislator to criminalize marital rape show a systematic failure to protect the rights of their citizen who are discriminated against but also the courts persistence in saying they cannot perform the function of legislators while simultaneously acknowledging the depravity of marital rape is contradictory in nature when they have been provisioned by article 142 of constitution, giving them the power to give a decree required to achieve a just cause in a matter. This paper advocates for the revocation of marital rape that will be under section 63 of Bhartiya Nyaya Sanhita in immediate future because by addressing this injustice, India can work towards being a more equitable society by upholding the basic principles of constitution like right to dignified life.
- Akshita (Jindal Global Law School)
[1] SC seeks centre’s stand on plea against marital rape exception in New Criminal Law, The Economic Times. Available at: https://m.economictimes.com/news/india/sc-seeks-centres-stand-on-plea-against-marital-rape-exception-in-new-criminal-law/articleshow/110216068.cms (last visited: 11th June,2024)
[2]Manupatra, Articles. Available at: https://articles.manupatra.com/article-details/Marital-Rape-and-Law (last visited: 11th June,2024)
[3]Marital rape: – current legal framework in India and the … Available at: https://www.galgotiasuniversity.edu.in/pdfs/issue2.pdf (last visited: 11th June,2024)
[4] The decriminalisation of marital rape: How India continues to refuse justice to its married women OHRH. Available at: https://ohrh.law.ox.ac.uk/the-decriminalisation-of-marital-rape-how-india-continues-to-refuse-justice-to-its-married-women/ (last visited: 11th June,2024)
[5] Criminalising marital rape will have ramifications: Govt tells Supreme Court (2023) Hindustan Times. Available at: https://www.hindustantimes.com/india-news/criminalising-marital-rape-will-have-ramifications-govt-tells-supreme-court-101695409248341.html (last visited: 11th June,2024)
[6] Exception to marital rape in India. Available at: https://ili.ac.in/pdf/14._harleen__F_.pdf (last visited: 11th June,2024)
[7] Marital rape: A glaring lacuna in India’s rape laws. Available at: https://ijpsl.in/wp-content/uploads/2021/01/Marital-Rape-A-Glaring-Lacuna-in-Indias-Rape-Laws_Varada-B.pdf (last visited: 11th June,2024)
[8]Criminalisation of marital rape (2023) PWOnlyIAS. Available at: https://pwonlyias.com/current-affairs/criminalisation-of-marital-rape/ (last visited: 11th June,2024)