MARITAL RAPE A CONSTITUTIONAL AND CONCEPTIONAL ANALYSIS - Akanksha Jindal & Akshdeep Gupta

Author: Akanksha Jindal & Akshdeep Gupta

Amity Law School, Noida, AUUP

ABSTRACT

Marital rape means any unwanted sexual acts by a spouse that is committed without the other person’s consent. The purpose of this paper is to discuss about the status of marital rape in our country India. The research seeks to examine the background and the present scenario of marital rape in the country. In our research paper we will discuss about the current scenario of it and also why it is like this which means why it is not a crime in India. Also, the Indian citizens are raising questions about the criminalization of marital rape in country and as a result many petitions have been filed before the court for declaring this act as a criminal offence, in our research we will cover all of such petitions and how court refused to make marital rape a criminal offence by giving unjustifiable reasons for it. At present, India is one of the 36 countries where marital rape is not a crime. The research shall further draw a comparison between the legal frameworks of India and USA pertaining to marital rape. Through this research we as authors just want to clarify the concept of marital rape and how it is accepted in our country. As we know there is debate going on in the country for making marital rape a criminal offence but our legislation and judicial system will consider it that making amendment to the law relating to sexual offences is a very sensitive task and hence it should be dealt with accordingly.

INTRODUCTION

Spousal rape has been increased in a few years. The most important elements of Marital rape includes the mental pain of rape, the trauma of being victim of her own husband and helplessness to be calm and calm unforgettable scars of these incidents. People in India are free from crime in the streets, but women are not immune to crimes their own home not touched by anyone. Indiana University Press, in 1990 it was reported that “more than one in seven women married was raped in their marriage. According to the United Nations Population Fund more than two-thirds married women between 15 and 50 in India were married subject to forced sex, beaten, and tortured with groom.

Despite the increasing recognition of various criminal laws in India, the rape has generated over the past two to three decades. There is a need for a special law on marital rape in India, which must also be accepted with international norms on this particular issue. Women had the right to fight for protection, but her own husband, with whom she had faithfully faithful, tried to hurt and torture her by having a powerful generation without her consent, eventually spoiling her health and well-being. There is no justification or appropriateness of understanding all marriage exemptions in the present time. This article talks about the criminalization of the rape and it must be recognized by law that, irrespective of the rape, it can be analyzed. Any violent sex without the permission of the spouse will lead to rape.

CURRENT SCENARIO

If we see from the prospective of men, Fundamental Rights of men are being violated guaranteed under Part III of The Constitution of India, 1950. Article 14 of the Constitution provides Equality before Law. According to Article 14 of the Constitution ‘the state shall not deny to any person equality before the law or the equal protection of laws within the territory of India’. Article 14 embodies the general principles of Equality before law and prohibits unreasonable discrimination between persons, which is the greatest idea of equality expressed in the Preamble.

Patanjali Sastri, C.J.,[1] held that:

“Equal protection of law” is corollary of first expression “equality before law” and it is difficult to imagine a situation in which the violation of equal protection of law will not be violation of equality before law”

The equality clause enshrined in article 14 is of wide importance. It guarantees equality before the law or the equal protection of the laws within the territory of India. The restriction imposed by reason of a statute, however, can be upheld in the event it is held that the person to whom the same applies, forms a separate and distinct class and such classification is a reasonable one based on intelligible differentia having nexus with the object sought to be achieved[2].

Here, if the Hon’ble Court recognizes Martial Rape it will create disruption in the society. It will cause excessive interference with the institution of marriage, it is considered to be a sacred institution that forms the bedrock of our society.

Art. 15 of the Indian Constitution, 1950 states, “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them…….”

It has been stated in case of E.P. Ryoppa[3]

“Legislation which gives a wide power to the executive to select cases for special treatment, without indicating the policy, may be set aside as volatile of equality. On the one hand, provisions which lay down policy are likely to be upheld. But, on the other hand, provisions which fail to give such guidance are likely to be invalidated”.[4]

Also, said in Chiranjit case[5] by the Apex Court “Any inequality, in order to be unconstitutional, must be actually and palpably unreasonable and arbitrary.”[6]

The classic nexus test was enunciated by S.R. Das, J. in the Anwar Ali Sarkar case[7], thus:

“In order to pass the test of permissible classification two conditions must be fulfilled viz. (i) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others left out of the group, and (ii) that the differentia must have a rational relation to the objects sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct and what is necessary is that there must be nexus between them.”

Here, the classification done is not permissible and moreover, there’s misuse of this classification. If the people for whose protection these laws are made are misusing these laws for their own personal gain and misguiding court with their false complaints[8]. By this not only husband but his family suffers even when they are innocent. The basic concept of our Criminal Jurisprudence is that let the 100 culprits may go free but no innocent should be punished. Even this concept gets violated.

The Matrimonial Laws are being misused by the individuals for whose “protection” those laws were enacted. The Right to life and liberty assured under Art.21[9] of the Indian Constitution is also violated. Here not only the right of the accused husbands but also effects the entire family[10] where in following a marital discord. Where earlier with only a testimony of the wife, the husband and family members are put behind bars, due to the misuse of law the Hon’ble court has directed the police not to arrest with a mere complaint against the husband and family members[11]. After the complaint, they are pressurized for huge sums for an out of Court settlements such laws have become a sword rather than a shield and with further amendment by removing the exception in S. 375 of IPC, 1860, this sword is likely to become more disastrous.

In Sushil kumar v. Union of India[12][13], it was submitted that

“……Misuse of the provision is judicially acknowledged and there is need to adopt measures to prevent such misuse, they come across a large number of complaints which are not bonafide and filled with oblique motive…..”.[14]

In 2016[15], 6745 cases under IPC 498a were considered false as per the final report. 2958 cases were considered as a mistake of facts. 8308 were considered with insufficient Evidence.

According to Delhi commission for women 53.2%of cases registered are false[16].

Here in such cases the Right to Live with Dignity[17] of men is violated and any sum of money cannot compensate the mental and physical harassment suffered by the husband. Kharak Singh[18] has correctly held that the content of the expression ‘life’ under Art. 21 mean not merely the right to a person’s “animal existence” and that the expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a person’s home or an intrusion into personal security, also correctly laid down that the dignity of the individual must lend content to the meaning of ‘personal liberty’. Just and fair procedure is also a part of Fundamental Right to Life[19].

EXCEPTION 2 OF SECTION 375 (IPC): BONE OR A BANE

Furthermore, Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.[20]

The widespread #metoomovement, in this movement there were many false cases which hampered the process of law and one such instance is of the Duke Lacrosse players and the former football player whose alleged victim later admitted she wasn’t raped. And after this #protectourboys movement was started. Even #MenToo movement was started by a NGO[21] in Bengaluru, this movement was supported by Former French diplomat Pascal Mazurier.

We are ignoring the mental agony, pain and what all husbands[22] and his family have to go through because of false cases filled by their wives. There’s no law which they can use a their protection and here we are talking of making one more law in favor of women’s, isn’t this also discrimination and violation of men’s right to equality?

E.P. Royappa v. State of Tamil Nadu[23].13 Bhagwati, J. stated :

“Equality is a dynamic concept with many aspects and it cannot be ‘cribbed, cabined and confined’ within the traditional and doctrinaire limits. From the positivistic point of view equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies…. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14….”

Bhagwati, J. had in Maneka Gandhi[24] proceeded to examine the ‘content and reach’ of the ‘great equalising principle’ enshrined in Article 14. He observed that:

“It is indeed the pillar on which rests securely the foundation of our democratic republic. And therefore, it must not be subject to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate it’s all embracing scope and meaning, for, to do so would be to violate its activistic magnitude…. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits…. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally and philosophically, is an essential element of equality pervades Article 14 like a brooding omnipresence.”

SubbaRao J. has also said in LachmanDass v. State of Punjab[25],

“A citizen is entitled to a fundamental right of equality before the law and the doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to the said doctrine. Over-emphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification.”

It is therefore said that the Fundamental Rights are subject to equal enjoyment by every citizen of the country. The law should aim to be gender neutral not gender biased. The main root of the problem is assumption on which our society is functioning and thus by amending this provision will amplify and strengthen the gap of inequality.

CRIMINALIZATION OF MARITAL RAPE IN INDIA

As discussed above in our country the sexual intercourse by man with his wife even against her will is not considered as rape and is not a criminal offence.

The Supreme Court in the case of Independent Thought v. Union of India[26] held that Sexual intercourse by a man with his wife, the wife not being less than 18 years of age, is not rape.

But this judgment by the Supreme Court received mixed responses from the citizens of our country. Till now this is not acceptable in the society that if any man forces his wife for sexual intercourse then that will not be considered as an offence just because her age is 18 years or above.

This is not the only case in which the Indian judiciary discussed about the criminalization of marital rape many petitions have been filed in the courts for the criminalization of marital rape before this case and even after this case also.

In Nimeshbhai Bharatbhai Desai v State of Gujrat, RIT Foundation v. Union of India etc. the criminalization of marital rape was discussed.

In Nimeshbhai Bharatbhai Desai v State of Gujarat, Justice Verma noted “stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands”. Marital rape ought to be a crime and not a concept. Of course, there will be objections such as a perceived threat to the integrity of the marital union and the possibility of misuse of the penal provisions. It is not really true that the private or domestic domain has always been outside the purview of law. The law against domestic violence already covers both physical and sexual abuse as grounds for the legal system to intervene. It is difficult to argue that a complaint of marital rape will ruin a marriage, while a complaint of domestic violence against a spouse will not. It has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status. But in the final judgment of the case it was held that the husband cannot be prosecuted for the offence of rape punishable under section 376 of the IPC at the instance of his wife as the marital rape is not covered under section 375 of the IPC.

The above judgment had a bearing effect on the RIT Foundation v. Union of India[27] where the petitioners have challenged the constitutionality of the IPC’s exemption to marital rape under Section 375.

On 29^th March, 2019, Anuja Kapur filed a petition in the apex court which urged to direct the Centre to frame the necessary guidelines along with appropriate laws and by-laws related to marital rape as a ground for divorce. The following are the main points which will be under the consideration of the court:

1) It is mentioned in the petition that there should be proper guidelines for registering the FIRs against marital rape.

2) It has been claimed that there is no law in our legal system for stopping marital rape.

3) It contended to maintain the dignity of women in marriage.

If these responses from Indian society are taken into consideration then it is the time for making law for marital rape or to declare it as a criminal offence.

In a study conducted by the Joint Women Programme, an NGO, found that one out of seven married women had been raped by their husband at least once. The reasons given for not making marital rape a criminal offence are like, this will destroy the marriage, someone might be at risk of fabricated case, it is difficult to prove the crime of marital rape etc. But none of these reasons provides any justification for not making the marital rape a criminal offence, because any marriage in which the husband rapes his wife is already destroyed. All of these reasons stated above are just the excuses for male dominated society that lack of proper legal reforms for the protection of dignity of women in the country.

The Congress MP Dr. Shashi Tharoor also introduced a private bill in the Lok Sabha to make marital rape a crime. The bill was titled Women’s Sexual, Reproductive and Menstrual Rights Bill 2018.He mentioned in this bill the existing laws fail to recognize ‘woman’ as an individual capable of making her own choices, specifically her sexual choices as a wife and her reproductive choices when pregnant. Its central idea was the “agency of women”. His bill covered topics related to the dignity of women including the concept of marital rape. It proposes the deletion of Exception 2 to Section 375 of Indian Penal Code, which states that sexual intercourse by a man with his own wife is not rape. But still this is pending in the parliament.

At present, marital rape is the most common and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of marriage. It is common but under reported crime due to the absence of related laws. In India, marital rape exists de facto but not de jure.

The current scenario of marital rape is not accepted by the Indian society because of the rate of increasing education and legal awareness in the country many people are aware of their rights and duties provided by the legal system of the country to its citizens and the above stated cases are the proof of this dissent.

COMPARATIVE ANALYSIS: INDIA AND USA

The Indian status related to marital rape is not appreciated much. India is one of the 36 countries where marital rape is not a crime. Malaysia in 2007, Turkey in 2005, Bolivia in 2013 and United States of America in 1970s declared marital rape a criminal offence. Many countries in the world have set and defined procedure and laws for the act of marital rape. In this research paper we have compared the status of status of marital rape in India with United States of America.

The following are points of comparison between the status of marital rape in India and United States of America:

LAWS RELATED TO MARITAL RAPE.

In India the offence of rape is defined under section 375, of the Indian Penal Code but as regards the rape committed on a female above the age of 18 years, there is no legal resort but if the rape is committed on a married girl below the age of 18 years then it will be covered by Section 375. Whereas, in USA the offence of rape has been defined in the United Code of Military Justice under Chapter 47X, Section 920 Article 120 and under this provision marital rape is banned that is it cannot be used as a defense by the accused. But as we know in USA there exist two types of laws i.e., National Laws and State Laws. There is no national law on rape, so accordingly each state has its own law concerning it. The position of state laws of America is that, in all the 50 states of America, marital rape is illegal.

PUNISHMENT FOR MARITAL RAPE.

The punishment for marital rape in India with a married girl below the age of 18 years is same as of rape i.e., imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine but there is punishment for marital rape with the woman above 18 years as there is law for that in our country. In USA, the punishment for marital rape is same like the rape committed by any other person. The accused can be penalized for several years or for even life imprisonment.

CASE LAWS DECIDED THE STATUS OF MARITAL RAPE.

In India, in the case of Independent Thought v. Union of India[28] the honorable Supreme Court held that if rape is committed on a married girl child below the age of 18 years will be covered under the offence of rape as defined under Sec 375, IPC but as regards the rape committed on a female above the age of 18 years, there is no legal resort available to the women under the criminal law and is still being considered as an exception to the rape.

In USA, Nebraska was the first state to abolish marital rape, but the turning point was the New York case of People v. Liberta where it was finally decided that there was no reason for discriminating between rape and marital rape. The court noted that “a marriage license should not be viewed as a license to forcibly rape wife with impunity” and struck the marital exemption from the statue in question for violation of the state and federal constitution.

JUSTICE TO WOMEN.

If we compare the justice provided to the women in both the countries who are the victims of the marital rape then it can be said that India is lagging behind in this point and it a major setback because just due to the few unjustifiable reasons the women in the country can not avail any remedy for the crime of rape committed with her by her own husband. So basically, marriage is considered as a license to the men to exploit the women and to go escaped for this offence. But this same thing is much better in USA because all of its 50 states have recognized marital rape as a criminal offence and no women in the country has to face any wrong with her just because she entered into the contract of marriage.

From the above comparison of the status of marital rape in both the countries it has been observed that there is no differentiation made in both the countries between the rape taking place within wedlock and outside it and the other one does that. Though marital rape is illegal in USA but not in India but still in USA also the same treatment is given to the person who commits rape and the one who does the same act but with his wife, the same punishment is given to both the criminals. Whereas the crime of marital rape not only cause the mental and physical injuries but the woman who becomes the victim of this crime also has to go through a social stigma which is completely different from the non-marital rape.

CONCLUSION

In this research paper, we have analyzed the marital rape from all the perspectives that what it actually is, its history and background in the country, present scenario, why it is not an offence in India, why it should be an offence in India and also an comparative analysis is also done between the status of marital rape in India and USA.

After all of the above discussion and research we have concluded that changing any law or making amendments to any law especially related to the sexual offences is very sensitive topic in India because it is a developing country and still due to the low rate of education and the poverty in country, the citizens will not be able to accept any such big amendment easily and it can also create a situation of revolt in the country which a developing country cannot afford. So, our judicial and legislation system has to consider all of these things before amending the provisions relating to marital rape.

Hence, this debate in country on whether marital should be a crime is a very sensitive topic and it should be dealt carefully. But this is the time when our legislation and judicial system should take a strong step for providing the justice to the women in the country who are the victims of the marital rape and are helpless due to absence of laws in the country. The myth which is prevailing in the country that rape by one’s spouse is inconsequential needs to be acknowledged and challenged, and accordingly the changes should be made in the law.

[1]Kathiraningrawat v The State of Saurashtra(1952) air 123.

[2]John Vallamattom v Union of India, A.I.R. 2003 SC 2902.

[3]e.p. Royappa v State of Tamil Nadu and ors. A.I.R.1974 SC 555.

[4]State of West Bengal v. Anwar Ali, (1952) SCR 284; Ajit Singh v. State of Punjab, A.I.R. 1967 SC 885, 886; Meenakshi Mills v Vishwanath, A.I.R.1955 SC 13.

[5]Chiranjitlal Chowdhuri v The Union of India and others 1951 A.I.R. 41.

[6]Supra 36 (para 66).

[7]Anwar Ali Sarkar v The State of West Bengal A.I.R. 1952 cal 150.

[8] Delhi commission for women, 53.2 per cent rape cases filed between April 2013- July 2014 are false.

[9]Protection of life and personal liberty no person shall be deprived of his life or personal liberty except according to procedure established by law.

[10]Lalitakumari v. Government of Uttar Pradesh (2014) 2 SCC 1; Arrest of a relative other than husband could only be after permission from the concerned magistrate.

[11]Arnesh Kumar v. State of Bihar (2014) 8 SCC 273.

[12](2005) 6 SCC 281.

[13]Sajesh Sharma and ors. v. State of U.P. And Anr. Special leave petition (CRL.) No.2013 of 2017, Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667, Savitri Devi v. Ramesh Chand 2003 CRIJL 2759.

[14]Ramgopal v. State of madhya pradesh (2010) 13 SCC 540, savitri devi v. Ramesh chand ILR (2003) I delhi 484.

[15]https://www.thehindu.com/news/cities/mumbai/running-for-mens-rights/article26044998.ece

[16]https://www.thehindu.com/news/cities/delhi/dont-advise-women-to-lodge-false-rape-cases-court/article23337654.ece

[17]Protected under article 21 of the constitution.

[18]Kharak singh v. State of u.p, 1963 A.I.R.1295, 1964 SCR (1) 332.

[19] State of punjab v. Dalbir singh (2012) 3 SCC 346- para 46,52 and 85, (2014) 4 SCC 453- para-21.

[20]Justice k. S. Puttaswamy (retd.) Andanr. V. Union of india and ors, A.I.R.2017 sc 4161,para 3 (f).

[21]Children’s rights initiative for shared parenting (crisp).

[22]64,000 Married men committed suicide according to ncrb report of 2012.

[23]A.I.R.1974 SC 555.

[24]Maneka gandhi v. Union of India A.I.R.1979 SC 468.

[25] A.I.R.1963 SC 222.

[26] Writ petition (civil) no. 382 of 2013.

[27] Writ petition (civil) no. 284 of 2015.

[28] Writ petition (civil) no. 382 of 2013.