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Legality Of Marital Rape- A Loophole In The Indian Legal System

Abstract

Marriage is considered a sacred social institution that unites two people for a lifetime. But the purity of this sacred bond starts diminishing when either party to the marriage starts dominating the will of another spouse. One such unaddressed and controversial issue is Marital Rape. The patriarchal nature of society doesn’t care about the wife’s consent and treats them like an object. Rape is one of the most heinous crimes committed against women. There are strict laws to prevent the crime of Rape. But marital rape is an exception to Section 375 and is still considered a personal matter. The right of women to equality and dignity is violated by marital rape. So, Why does a person get unpunished just because he is the husband of that woman? This law was made years ago when society does not recognize marital rape as an offence. But over time, there has been an urgent need for amendment in the Indian criminal system to criminalize Marital rape to protect the interest of married women. This article will cover the  Rape-Laws of India and discuss the legality of Marital Rape yet in the modern era.

Keywords

Marital Rape, Women’s rights, Matrimonial Consent, Criminal Offence, Section 375, Sexual Intercourse, Right to life. Rape, Harassment, Marriage, Equality, Crime, Article 14, Article 21

Introduction

In India, various provisions are made to safeguard women’s rights. Still, a large number of cases of domestic violence have been registered. In a recent report by National Crime Record Bureau(2020), a total of 3,71,503 cases of crimes against women have been registered out of which 1,11,549 cases of violence by husbands and their family members, and 28046 cases of rape. It also shows that 77 rape cases were reported every single day.[1]

Defining Rape

The Indian Penal Code’s Section 375[2] addresses the crime of rape in India. It says that a man who engages in sexual activity with a woman in any of the following situations is said to have committed “Rape,” For example, if it is done opposed to her wishes, or without her permission, or with obtaining her permission by putting her or her loved ones in danger of harm or death, or when she is of unsoundness of mind or intoxicated of such a nature that she is unable to understand the consequence of her assent. If she is under 16, any sexual activity with or without her consent will amount to the offence of Rape. When a woman voluntarily expresses her desire to engage in particular sexual intercourse through words, gestures, or any other verbal or nonverbal communication, this is referred to as giving her consent. The offence of rape is punishable as per the provision of section 376 of the IPC. Section 376[3] says that a person who commits rape is subject to a fine as well as a sentence of rigorous imprisonment that must not be less than 10 years and can be increased to life imprisonment. And if the woman is under 16, then the offender will be subject to 20 years of rigorous imprisonment, which may be extended to life sentences, as well as a fine. However, there are two exceptions to Section 375 of IPC. The first exception is a medical procedure. And the Second exception is Marital rape.

Marital Rape

Exception 2 of Section 375 decriminalizes marital rape. According to this, sex between a man and his wife without her assent and who is over the age of fifteen is not rape. As a result, the rape provision does not apply to the offences of marital rape but is just considered domestic violence in which civil remedies are provided to the wife. So, due to this old age law, many accused husbands go unpunished. In Indian society, it is assumed that when a woman marries, she has given her husband implied permission to engage in sexual activity with her for the rest of her life and there is no escape from saying “NO”. Only a small number of cases of marital rape are reported each year because women fear for their families reputations in society and worry that if their husbands divorce them, society won’t accept them.

Effect of Marital Rape

Marital Rape causes physical or mental suffering and also violates the fundamental rights of women. A woman suffers not just during the act but also for years. During sexual violence woman victims also suffer physical violence. Marital rape can leave victims with injuries and wounds to their bodies, including their private organs. It can also cause infections, miscarriages, infertility, HIV transmission, rape trauma syndrome, fear, low self-esteem, sexual instability, and post-traumatic stress disorder.

The decriminalisation of Marital Rape violates the equality right protected by Article 14[4]. It differentiates between married and unmarried women. Article 15(1)[5] and 15(3)[6] forbids gender-based discrimination and empowering the state to implement special measures for safeguarding females’ interests respectively doesn’t keep important if marital rape is not considered illegal yet in our country. Marital rape violates the rights to life and personal liberty because it infringes on women’s rights to sexual autonomy, bodily integrity, privacy, and dignity, all of which are covered under Article 21 protection.  Every woman has the free choice to deny any intercourse against her will. It doesn’t matter whether she is married or unmarried. The basic fundamental rights of married women, which are guaranteed to everyone by the Indian constitution itself, are snatched away by the arbitrary and unreasonable provisions of Exception 2 of Section 375.

Evolution In The Anti-Rape Law

The first law commission was established in India during colonial rule in 1834 as a result of the Charter Act of 1833, which was approved by the British parliament. It was created to codify an Indian penal code, and Lord Macaulay served as its chairman. As a result, the Indian Penal Code was introduced in 1860  and came into effect on 1 January 1862. For the first time in India, Rape is considered an offence in the Indian Penal Code of 1860[7].

These laws remained the same till 1983. On 26th March 1972, a brutal rape known as the Mathura rape case was committed with a tribal girl aged 16 years by two police officers when she was under their custody. The accused police officers were acquitted by the trial court because Mathura was habituated to sexual intercourse. On appeal, the Apex court ruled that the absence of consent cannot be proven because the victim’s body bears no signs of injuries. This judgment of SC resulted in outrage across India. As a result, in 1983, the government passed the Criminal Law (Second Amendment) Act, incorporating Section 114 (A) of the Indian Evidence Act[8]. It addressed custodial rape for the first time in the Indian legal system and held that the absence of voluntary consent would be presumed in the case of custodial rape. This also banned the disclosure of victim identity and prevention of character assassination of the victim in a court of law. 

Later in 2012, Due to the uprising in child rape cases, There is an alarming need for a separate legal provision that mainly deals with the child victim of sexual violence. Consequently, in 2012, the Protection of Children from Sexual Offenses (POCSO) Act was introduced. It said that the reporting of child rape cases is mandatory and it will be fast-track by special courts within a year. The Act was gender-neutral and it includes non- penetrative assault and banned child pornography.

Again in the same year, the Nirbhaya Rape Case (16th December 2012) shook the consciousness of the whole country when in a moving bus, a 23-year-old woman was gang-raped. The brutality of the case resulted in widespread protest throughout the country and major changes in rape law were demanded to make more strict provisions. Due to the massive protest, the Government instituted Justice Verma Committee to review laws related to the protection of women against sexual assault. The committee’s recommendations led to the introduction of the Criminal Law (Amendment) Act 2013. The minimum sentence of rigorous imprisonment has been increased from 7 years to 10 years. The offender must serve at least 20 years in prison if the act causes the victim’s death or puts her in a vegetative state.

Recently In 2018, A rape case of an 8-year-old girl was reported. This case led to a mass protest not just because it was against the minor but also because it was committed by a priest inside a temple. Soon, the matter became politicized along with Hindu-Muslim lines. Due to immense pressure from protesters, the Government came up with The Criminal Law (Amendment) Ordinance 2018 to introduce new changes to the POCSO Act. It held that rape of a girl under the age of 16 years shall be punishable with at least 20 years of rigorous imprisonment and in the case of a girl under 12 years, imprisonment for life or even the death penalty shall be granted.

Despite several amendments over years, Rape cases are still reported every year. However Marital rape is still unaddressed. The Justice Verma Committee had suggested eliminating Section 375’s exception 2 which provides immunity to husbands who treat their wives as an object and commit such a heinous crime and should be punished in the same manner as other rapists. However, the 167th report of the Parliament Standing Committee on Home Affairs refused to accept the recommendation of the committee and said that the criminalization of marital rape by eliminating exception 2 of section 375 will collapse the entire family system as a social institution.

Status Of Marital Rape In Other Nations

Marital rape is a common issue against women all over the world irrespective of their ages. However, many countries have criminalized the offence of marital rape, unlike India. In the year of 1932, Poland was the first to recognise marital rape as a crime. Later, rape was included in the definition of rape and is strictly punishable by law in New Zealand, Canada, France, Denmark, Norway, Sweden, Israel, the United States, and the USA. Since 1993, all 50 states in the United States have classified marital rape as a crime.

The Argument Behind The Legality Of Marital Rape

Marital Rape offends women’s modesty. A married woman is sexually bound to her husband at all times. Despite the uprising cases of marital rape, Government is unable to bring the amendment to remove exception 2 of section 375. Many arguments are provided to support the legality of marital rape. Some of them are reasonable and some show the patriarchal nature of society. One of the biggest supporting statements is the misuse of criminalization of marital rape. We have already witnessed rising false cases of Section 375 itself and Section 498A of IPC which are supposed to safeguard married women from the cruelty of their husbands and her-in-laws. But somehow it becomes the weapon of wives to harass their husbands and their families. In these cases, conviction rates are much lower as compared to the reported cases. After the decriminalization of marital rape, there is a high chance that a large number of false cases may be registered against husbands which will be resulted in the flooding of malicious prosecutions in Indian courts which are already compressed with thousands of cases.

Another argument given for not criminalizing marital rape is that it is difficult to prove as the said act is committed in a closed area where there are no eyewitnesses,  no CCTV camera, and no external proof that can show that the crime indeed happened. In the court of law, there is only the accused perpetrator husband and said victim wife. It is even harder to prove which sexual activity was consensual and which was not, or at which time the consent was withdrawn. Giving the unlimited power to the wife to decide the case will be an injustice to the husband. So, how will the court decide whether the Charges of marital rape of the respondent against the accused husband are true or not? 

Even in the case of marital rape, it is claimed, if any injuries are found in her body, Even then there are already existing laws in force in which a wife can prosecute her husband. These are Section 498A, Section 354, Section 354A, Section 376B, Section 503, and Section 509. Section 498A[9] is a major section created for the protection of the wife against the cruelty of the husband or their families. This says, “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.” Except for the said provision of IPC, women can also seek relief against the harassment of their husbands under the Domestic Violence Act, of 2005.

Challenges In Drafting Laws Related To Marital Rape

While analyzing the above arguments, We find that it is quite challenging to prove the charges of marital rape. How will the wife show the evidence that will prove the commission of the offence beyond reasonable doubt and how will the husband prove his innocence? If the husband is convicted and punished, then will the wife be allowed to live with the family of her husband? What are the chances that the family of her husband will not hurt her? What if the victim wife is unemployed, then how will she survive after the conviction of her husband? And the situation becomes more crucial if they have kids. Will she be allowed to remarriage? Will society or her parents accept her? These are some issues that need to be addressed when formulating the statute concerning marital rape.

Role Of Judiciary

Indian Judiciary has given various landmark judgments against the old-aged laws which are not required in the modern era. Some of them are Navtej Singh Johar & Ors v Union of India[10] which decriminalizes homosexuality,and Joseph Shine v Union of India[11] which declared unconstitutional to Section 497[12] of IPC which deals with Adultery. We see that the Indian Judiciary takes a stand against arbitrary rules and improves the legal system. However, the Indian judiciary takes a strict and rigid approach when it comes to cases of marital rape.

In 2015, the Supreme court dismissed a petition of marital rape citing it “the law shall not change for one woman.” Later in the Arnesh Kumar vs State Of Bihar & Anr[13], the Supreme court held that criminalizing marital rape will collapse social and family institutions. In the Nimeshbhai Bharatbhai Desai v. State of Gujarat[14], a lawsuit was filed by a wife against her husband who had forced her into non-consensual intercourse, the court stated that the applicant has only defence of Section 498A but can’t sue him under Section 375 because as per the current legal scenario, marital rape is not regarded as a crime. and a wife is assumed to have given her husband her implied consent to have sex with him since the day they entered into the marriage contract. In Dilip Pandey v the State of Chhattisgarh[15], the Chhattisgarh high court gave a judgment that intercourse with a wife under 18 without her assent by her husband doesn’t fall under the ambit of Section 375. So, it can be assumed that if a husband harasses his wife physically or mentally in the bedroom, the husband can be trialled under the Section 498A, but ironically if in the same bedroom, the same husband sexually assaults his wife, he can not be trialled under Section 375 because she has legally married to that person. However, we also find some positive judgment of the judiciary in this matter. In a recent Delhi HC decision, the court while observing that marriage doesn’t always imply the consent and willingness of women for establishing a physical relationship, reiterated that “Misuse cannot be an argument on whether an act should be criminalized or not.” [16]

In Rafiq v State of Uttar Pradesh Judgement, J. Krishna Iyer observed “A murderer kills the body but the rapists kill the soul”. In the Independent Thought v Union of India[17] case, the Apex court held that intercourse with a minor wife (under 18) will be regarded as Rape. The Karnataka high court in Hrishikesh Sahoo v. State of Karnataka[18] ruled that if the husband sexually assault his wife, then he can’t always take the defence of exception 2 of section 375 as the exemption is not absolute.[19] As we see that even though marital rape is not considered an offence by the government but various courts have started to take a stand for recognizing marital rape as an offence in past few years. Hence, we can expect some major changes in the Rape laws which criminalise marital rape in future.

Conclusion

Marriage is an integral part of Indian society. The importance of marriage cannot be disregarded. It is considered sacred and binds two souls for a lifetime. In the bond of faith and respect, the dominance of one party over the willingness of others is unacceptable. Mere apprehension of the misuse of laws cannot be a ground for the violation of women’s basic rights to life and dignity. Criminalizing marital rape is urgently needed. The legislature should repel exception 2 of Section 375 and bring marital rape into the ambit of rape under Section 375 of the IPC. With uprisings of cases of marital rape every day, it is attracting the attention of people of society toward the gravity of the offence. It is not just the responsibility of legislation and judiciary but also each and every person in society. We have to raise moral and social awareness among the people and have to change the patriarchal mindset of society that a husband has a right to engage in sexual activity with his wife just because they are married whether she is permitted or not. The victims of marital rape have to come forward and raise their voices for the protection of their rights. Rape is always rape. There should not be any exception even if it is committed by one’s own husband. The government needs to amend existing provisions of rape laws and criminalize marital rape to uphold the dignity of the women irrespective of their marital status and should punish the person who forces himself onto her in the disguise of marriage.

Name- Indu Kumari Shaw

College- Jogesh Chandra Chaudhuri Law College


[1] India records 80 murders, 77 rape cases daily in 2020: NCRB report, AIR(Sep. 16, 2021, 12:28), https://www.aninews.in/news/national/general-news/india-records-80-murders-77-rape-cases-daily-in-2020-ncrb-report20210916122845/

[2] Indian Penal Code S 375

[3] Indian Penal Code S 376

[4] Constitution of India, art.14

[5] Constitution of India, art.15, § 1

[6]  Constitution of India, art.15, § 3

[7] The Indian Penal Code,https://legislative.gov.in/sites/default/files/A1860-45.pdf

[8]  Indian Evidence Act S 114

[9] Indian Penal Code S 498

[10] Navtej Singh Johar & Ors v Union Of India, 2018

[11] Joseph Shine v Union of India, 2018

[12]  Indian Penal Code S 497

[13] Arnesh Kumar vs State Of Bihar & Anr, 2014

[14] Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018

[15] Dilip Pandey v the State of Chhattisgarh, 2021

[16] Misuse can’t be an argument for not criminalizing act: Delhi HC on marital rape, Indian Express(January 15, 2018 8:34:29 pm), https://indianexpress.com/article/india/misuse-cant-be-an-argument-for-not-criminalising-act-delhi-hc-on-marital-rape-5025890/

[17] Independent Thought v Union of India, 2017

[18] Hrishikesh Sahoo v. State of Karnataka, 2018

[19] Why Karnataka marital rape verdict is problematic, The New Indian Express(15th April 2022 12:30 AM), https://www.newindianexpress.com/opinions/2022/apr/15/why-karnataka-marital-rape-verdict-is-problematic-2442098.html#:~:text=In%20Hrishikesh%20Sahoo%20v.,exemption%20is%20not%20%E2%80%9Cabsolute%E2%80%9D

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