MARITAL RAPE: A CONSTITUTIONAL CRISIS

ABSTRACT

The exigencies of the time mandate a discussion on the former tabooed topic of discussion, that is marital rape. The constitutional challenges behind the lack of legal provisions penalizing and categorizing as marital offence as a crime are evidence to the interconnections that exist between the social fabric and the legal norms. The relationship between law and morality has been for long a topic of jurisprudential debates, where different jurists have advanced polarized views of the interdependence between the two. The constitutional roadblocks that exist between the concept of rape by a spouse and its recognition as a crime deserving punishment can be explained with reference to the changes in the judgements passed with respect to the issue over the years and the diversity of interpretations offered by courts of law across various states.

KEYWORDS

Marital rape, Personal laws, Sexual autonomy, Consent, Dignity

INTRODUCTION

Central to the discussion of rape committed with or without solemnization of marriage between the said parties is the concept of consent which is overlooked in the former scenario. Marriage is often, even in legal systems, conceptualized as a ceremonial contract that invests in the spouses several rights with respect to intercourse and procreation. The assumption of consent then becomes implied in such solemn contracts which in turn has a dehumanizing effect denying the right of choice, a basic human right, to the spouse concerned. The explicit grant of fundamental rights in the constitution are evidence to the fact that for enforcement, concerned rights, regardless of how basic they might be to human existence, need to be laid out and affirmed by law. The need for legal recognition of rights, hence, cannot be overstressed, for law is the sole device of protection that stands behind an institutionalized society and anarchy. It is in this light that the invoking the patriarchal basis of several societal norms becomes necessary. The resistance that the criminalizing of this offence is met with can be correctly perceived as an insecure attempt to protect the sexual superiority guaranteed to men by social system of patriarchy. Arguments advanced against marital rape being a legal or moral wrong consist of advocacy of forced sexual intercourse after marriage as necessary for the continuance and protection of the institute of family, and henceforth the offspring. Another cause of concern linked with the legal outcome of criminalizing marital rape is the fear of false accusations made by the spouses to fulfill ill-informed personal grudges against their sparring significant other. Consent is a liquid consent and is therefore difficult to quantitatively prove or establish in the court, the boundaries of consent become even more blurred when it gets encompassed under the institution of marriage.

REVIEW OF LITERATURE

The lack of legal prohibitions surrounding marital rape is a prominent issue that needs active redressal. This research paper is aimed at addressing the lacuna in the legal system with respect to non-consensual sexual intercourse between a man and his wife, and consecutively cite reasons for the judicial reluctance behind accommodating categorically marital rape as a penal offence.

THE MARITAL STATUS EXEMPTION IN RAPE is journal published by the Indian Law Institute which deals with the active protection rendered by the criminal law under Section 375 of IPC to a man who commits rape on his wife, lest she is under 15 years of age. It discusses how the provision makes consent inoperative in such cases.

JUSTICE VERMA COMMITTEE REPORT was submitted in the year 2013 by a three-member Committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court. The Committee was formed to principally recommend necessary amendments to the criminal law and provided opinions with respect to laws related to rape including marital rape, sexual assault, acid attacks, trafficking, offences against women in conflict areas, sexual harassment, child sexual abuse, medical examination of a rape victim, police reforms and punishment for crimes against women.

METHODOLOGY

Subjective analysis of qualitative and factual data including case laws has been conducted in order to understand fully the legal ramifications of the penalising of marital rape and the obstacles that prevent it. The data collected is from sources such as journals, articles, blogs available and published online by governmental and non-governmental websites as well as bare acts of various legislative provisions.

MARITAL RAPE AND PERSONAL LAWS

In addition to the moral significance of marriage, the religious significance accorded to the institution by various personal laws of the country is undeniable. Under both Hindu and Muslim personal laws, marriage is not only seen as a contract between two parties defining their mutual duties and obligations but also as a sacrament. In several judgements the sacramental character of marriage is regarded superiority over its contractual nature. In B. Sivanandy vs P. Bhagavathy Amma^[1], the three basic characteristics of marriage that establish its nature as a solemn sacrament were highlighted, these are:

1. It is a permanent union which implies that it is not within the powers or rights of any court to it on any ground whatsoever.
2. It is an eternal union which extends to a series of births. This characteristic justified the denial of right to remarry to widows.
3. It is a holy or a sacrosanct union.

Further, the nature of Hindu marriage can be highlighted with respect to ancient texts. For instance, according to Shastras, marriage is a holy sacrament where the gift of a girl to a suitable groom, that is “Kanyadan”, is the duty of the bride’s father in order to derive spiritual benefit accrued to the performance of this sacred duty. This view also finds support in the Vedas where marriage is defined as a sacred institution necessary for the regulation of social life. The modern law view, particularly with reference to the following Acts: the Hindu Marriage Act, 1955, The Hindu Widows Remarriage Act, 1856 and Hindu Adoption and Maintenance Act, 1956, etc. however, recognizes the dual character of marriage, with focus on its contractual aspects. It was in the case of Muthusami Mudaliar and Anr. vs Masilamani and Ors^[2], that the court observed that a marriage, whether considered a sacrament or an institution, is undoubtedly a contract which is entered with the intention of establishing correlative rights and duties as consideration.

Similar to Hindu personal laws, Islam also considers marriage as the basis of society essential for the peaceful maintenance of its social fabric. The Arabic word for marriage is nikah, whose literal connotation means the union of the sexes. In Islam, marriage simultaneously functions in the form of a contract whose purpose is to grant legal acceptance to sexual intercourse between the concerned couple and procreation of children. This function has been elaborated in Hedaya through its definition of marriage, which provides: “Nikah in its primitive sense, means carnal conjunction. In the language of law, it implies a particular contract used for the purpose of legalizing generation.” The importance attached to the institution of marriage in Islam can also be linked to its prohibition of unchastity and illicit relations and therefore, marriage exists to legitimize appropriate sexual intercourse as between a lawfully married couple by bestowing upon it’s the sanction and protection of society.

The contractual nature of Muslim marriage has been advocated for in cases such as Abdul Kadir v. Salima and anr.^[3] However, several jurists have argued to the contrary by citing that even Quran does not consider marriage as an ordinary contract, but rather accepts that there is a religious and social base of the institution. In Shoharat Singh vs Musammat Jafri Begum^[4], the Privy Council argued for the significance of nikah under Muslim Law as a religious ceremony. This view was reiterated in the case of Mt. Anis Begam and Ors. vs Malik Muhammad Istafa Wali Khan,^[5] where it was argued that marriage in Islam cannot be merely regarded as a civil contract.

What is clear from the above inferences of Hindu and Islamic personal laws is that the institution of marriage has been granted paramount importance as the basis of the social structures. Akin to this, in law husband and wife are treated as one person and therefore, communications between them are protected from legal liabilities. The societal value and associated legal conception of marriage as a holy union, therefore, in application makes the penalizing of various aspects of interactions between spouses problematics.

THE PENALOGY OF MARITAL RAPE

Rape is considered to be among the most heinous of all offences, for it has implications way beyond the visible physical aspects. It affects in the long term the psychological well-being of the victim and in turn degrades them. The primary legislation which governs the commission and punishment of this offence is the Indian Penal Code. Section 375 IPC contains the definition of rape, which is: “A man is said to commit “rape” if he-—

1. Penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her to do so with him or any other person; or
2. inserts, to any extent, any object, or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any of body of such woman or makes her to do so with him or any other person; or
4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person

under the circumstances falling under any of the following seven descriptions:

Firstly, — Against her will.

Secondly, — Without her consent.

Thirdly, — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly, — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly, — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly, — with or without her consent when she is under eighteen years of age

Seventhly, — When she is unable to communicate consent.

Explanation I—For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2—Consent means an unequivocal voluntary agreement when the woman by words, gestures, or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception I—A medical procedure or intervention shall not constitute rape.

Exception 2—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

With respect to marital rape, it becomes important to discuss the second Exception to Section 375, which explicitly provides that non-consensual intercourse by a husband with his wife is not rape, unless she is under the age of 15 years. This exception has archaic undertones and despite the fact latest amendment to criminal law in the year 2013 was aimed at improving women’s access to the judicial machinery, the lawmakers left marital rape untouched. However, of late legal controversies have been sparked with relation to spousal rape and concerns for sexual rights and freedom of women have been voiced. One of the first judgements to legally acknowledge the existence of right to sexual privacy of women was State of Maharashtra v. Madhukar Narayan Madikar^[6] where the Court condemned the open violation of a woman’s sexual privacy by any person according to their whims and wishes.

The anxiety behind failure to accept marital rape as a crime stems from the primitive way of thinking where wives were regarded as mere chattel of their husbands and an assumed, and irrevocable agreement to sexual intercourse was said to have been established at marriage. The need to progressively make a move towards the modern-day conception of marriage which recognizes women as equal haves of their partners was explicitly recognized in Justice Verma Committee Report. The Committee, which was constituted for the purpose of making recommendations for amendments to criminal law, made it unequivocally clear that in no circumstance or relationship should consent between an accused and a victim be presumed. Further, the probable fallacy of treatment of marital rape as a less serious form of rape should it be regarded as a crime was also addressed, in lieu of which the Committee suggested that any legal penalty against marital rape should be preceded by a change in the attitude of the administrative staff vested with the concerned duties and the public in general. The Committee’s contribution is also commendable as it recommended:

1. Firstly, that marital rape be removed as an exception in Section 375 IPC
2. Secondly, that the existence of any relationship whatsoever between a perpetrator and a victim should not be regarded as a ground of defense against charges of rape.

However, unfortunately no affirmative actions have yet been taken to bring these recommendations to life. This leads one to the conclusion that the legal prohibitions that exist to protect a women’s sexual autonomy and dignity somehow cease to operate within bounds of the sanctity of marriage as the sexual intercourse with husband, whether forced or consensual, is protected from the provisions of Section 375 under the second exception.

In 2017, the Supreme Court in Independent Thought vs Union of India and Anr^[7] was faced with the unconstitutionality of the exception as it legalized forceful sex with minor brides which contradicted the POSCO Act and infringed the penal code which considered rape with girls below 18 a statutory offence. While the Court addressed the issue and criminalized forced sexual intercourse with girls below 18, whether married or married, it left the main concern unattended, i.e., criminalization of marital rape regardless of age of the victim.

The debate has continued up to the present times with no concrete solution. In two recent judgements, the High Courts of the State of Kerala and Chhattisgarh have given contradictory rulings which highlight the dissonance in the judicial opinion when it comes to marital rape.

The Kerala High Court’s verdict delivered in August 2021 that listed marital rape as a good ground for divorce sent waves throughout the country as the Court acknowledged a woman’s rights of autonomy even within the bounds of marriage. Hearing a petition filed by a woman for divorce on grounds of cruelty, the Court observed “A husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalized, it falls in the frame of physical and mental cruelty”. This judgment in essence envisaged equal rights for a man and a woman. Nevertheless, not even a month later, the Chhattisgarh High Court acquitted a man charged with marital rape, holding that sexual intercourse by a man with his wife is not rape, even if it was by force or against her wish. This view found support in the ruling of Mumbai Sessions Court where forced sexual acts by husband were held as “unfortunate but not illegal”. Thus, in essence the controversies around penalizing marital rape are surrounded by an array of opposing and contradictory judgements which is reflective of the greater societal confusion which persists around the subject.

SUGGESTIONS

1. The constitutional infringement of rights that result from the commission of rape has been recognized by various judgements. For instance, in The Chairman, Railway Board and Ors vs. Mrs. Chandrima Das and Ors^[8], the court affirmed that rape is violative of the fundamental right to life under Article 21 which encompasses within itself the right to live with dignity. It, therefore, becomes imperative, both morally and constitutionally, to guarantee the right to have sexual autonomy to women over their own bodies so as to fully enable them to live their lives with dignity.
2. Furthermore, a conclusive legislation which applies the recommendations of Justice JS Verma Committee Report is necessary and most important, a society-wide sensitization program is needed to accustom the masses about the rights of women within the spheres of marriage.

CONCLUSION

The legal provisions surrounding rape laws are a complete mess, full of paradoxes and therefore, a continuation of debates surrounding marital rape is guaranteed both within the social and judicial forums. Both legislative changes are made as a consequence of long-lasting social debates and therefore, delay is sometimes evident as resolution of moral issues does not come easy. It is the duty of the lawmakers to strike an effective balance in their conceptualization of the relationship between law and morality before promulgating a law that deals with marital rape. It is important that non-consensual sexual intercourse be condemned and punishment in all its forms without exception and be treated as not only a ground of divorce but as a major social issue in need of judicial remedy.

Tushti R. Thakur

Amity Law School, Noida

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^[1] B. Sivanandy vs P. Bhagavathy Amma, AIR 1962 Mad 400

^[2] Muthusami Mudaliar and Anr. vs Masilamani and Ors, 5 Ind Cas 42

^[3] Abdul Kadir v. Salima and Anr., (1886) ILR 8 All 149

^[4] Shoharat Singh v. Musammat Jafri Bibi, (1915) 17 BOMLR 13

^[5] Mt. Anis Begam and Ors. v. Malik Muhammad Istafa Wali, AIR 1933 All 634

^[6] State Of Maharashtra and Another v. Madhukar Narayan Mardikar, AIR 1991 SC 207

^[7] Independent Thought v. Union of India and Anr, AIR 2017 SC 4904

^[8] The Chairman Railway Board & Ors v. Mrs. Chandrima Das & Ors, AIR 2000 SC 98