CRIMINALIZATION OF MARITAL RAPE LAW IN INDIA-NEED OF THE HOUR: AAYUSH AKAR & SHUBHANK SUMAN

CRIMINALIZATION OF MARITAL RAPE LAW IN INDIA: NEED OF THE HOUR

Author: Aayush Akar

Co-Author: Shubhank Suman

ISSN: 2581-8465

ABSTRACT

Marriage is seen as a standout of our nation’s most sacrosanct institution. In any case, this establishment shatters completely when its sanctity is worsened. Marital rape is abusing a woman’s right to pride and the greatest injustice here is that this horrific act in India is not yet being criminalized as a rape. Rape is rape regardless of who perpetrated it or what may be the culprit’s connection with the accused party.

Due to the non-criminalization of marital rape, married women have been subjected to various psychological and health problems. The reason for the marriage is ostensibly to have the right to engage in sexual intercourse with a partner. Regardless of the multitude of women’s security and upliftment laws, marital rape remains the most exceptionally barbaric and horrific offence that exists inside the four walls. It is the most disgraceful crime as a person that the lady loves and respects and adores to do and is more horrible as a result.

In this paper, we are going to discuss the status of marital rape in different countries, violations of constitutional rights, and judiciary role in marital rape. Doctrinal research technique has been used for the successful finishing of this paper.

Introduction

Rape per se is a crime against a woman, in violation of her modesty and self-respect, and where it happens beyond the four corners of the house, it lowers a woman to the position of an instrument used exclusively for sexual pleasure. Now it has become an urgent requirement for separate legislation to criminalize marital rape, which should be in line with the agreed global standards.[1]

The idea of rape in marriage created fear in the mind of women and the terror of having to confront it influences the mind of women which can lead to the destructive impact on women’s physical, social and behavioral health. The absence of legislation against marital rape and pervasive social customs and rituals favouring marital rape is one of the crucial factors why marital rape is invisible inside the “sacrosanct of marriage”.The woman has been granted the freedom to struggle to safeguard herself when rapists are the third party, but where the offender is her husband, whom she has matrimonial relation with all the prestige, this freedom is revoked by the legislature and there is no legislative intent to criminalize marital rape.[2]

The system of justice must be persuaded to recognize rape as a felony of marriage. Therefore, women themselves must break away from the patriarchal fetters to struggle for justice. Women raped by their spouseare prone to be repeatedly abused. Husbands often abuse their spouse while they are asleep or use aggressive methods to compel their spouse to have sex with them that is non-consensual. It is is a significant issue that several women in this country face daily and suffer from this violence. It has become a complex problem to ascertain reliable data of rape and sexual abuse because they are afraid to disclose instances which may be due to family loyalty, fear of their perpetrator’s punishment, to safeguard the future of children or the lack of rigorous legislation.[3]

Even the Government of India has contended in the High Court of Delhi that marital rape cannot be criminalized because in other people’s eyes, what may seem like rape to the wife may not be rape. This argument suggests how conservative Indian society is in cases of rape and is now become a standard defence for not criminalizing marital rape.[4]

There are various types of marital rape which are prevalent in society.

  1. Battering Rape- Here, mostly women suffered from both sexual and physical violence. Mostly husband coerces his spouse to have sex with him which is against the will of the wife. Most cases of marital rape are covered in battering rape.
  2. Force-only Rape- In this category of rape, reasonable force is used by the husband to coerce his wife for sex and any physical assault happens on the part of refusal by the wife.
  3. Obsessive Rape-This type of rape involve mental and physical torture as well as “pervasive” sexual act.[5]

This paper attempts to highlight the prejudice, shortcomings, and weaknesses of the justice system in India concerning marital rape. It goes on to offer claims and explanations for criminalizing marital rape. Lastly, the paper recommends a variety of legislative suggestions that are key to the accomplishment of the desired goals.

STATUS OF MARITAL RAPE IN DIFFERENT COUNTRIES

In India exception to grant immunity to marital rape was there in the rape laws from the beginning. “Australia became the first common law nation to pass reforms in 1976, under the influence of the second wave of feminism in 1976, which made marital rape a felony. Several Scandinavian countries and states in the Soviet bloc passed laws criminalizing marital rape, including Sweden, Norway, etc in the last two decades. In 1932 Poland was the first to pass legislation that made it a felony.”[6] Many common law states have repealed the legal protection of marital rape since the 1980s including the United States, South Africa, Israel, etc.

In the US, between the 1970s and 1993, all 50 states made it as a criminal act. “The European Parliament resolution on violence against women called for the criminalization of marital rape in 1986, which was carried out shortly thereafter by several countries, including France, Germany, the Netherlands, Belgium, and Luxembourg”.[7] In 1991, the Supreme Court in the United Kingdom overturned its statutory rule that a matrimonial contract would imply the assent of a woman to all sexual intercourse.

Nepal had criminalised marital rape in 2002 after the Top Court ruled that it was contrary to the constitutionally protected right to equality and privacy rights. The Court stated that “The classification of the law that an act committed against an unmarried girl to become an offence and the same act committed against a married woman not to become an offence is not reasonable classification.”[8] According to the report by UN Women in 2011, out of 179 nations for which statistics were available, 52 had modified their laws to make it a felony explicitly. The rest of the nations including those making an exception in their rape laws and where there is no such exception, the spouse can be convicted for sexual abuse in such nations.[9]

LEGAL POSITION OF MARITAL RAPE IN INDIA

In India section 375 of IPC defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case, if she is under 18 years of age”[10] however there is an exception of it also provided that says “Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape”. Hence as per current law marital rape if committed against wife more than 15 years of age is not punishable in India. It established a notion that after marriage women become the property of men therefore they have no right to refuse sex with her husband. This grants husbands a license to rape their wives. In a survey conducted by the International Centre for Research on Women (2011) nearly 20% of women said they are subjected to marital rape. Similarly, as per the National Health and Family Survey (NFHS-4) conducted in 2016, 5.6% of the total surveyed women found to be a victim of physically forced sexual intercourse.[11]

As per current law, rape legislation regarding married women are divided into four groups

  • When the age of the wife is below 12 years, “offence punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.”
  • When the age of the wife is between 12-15 years, “offence punishable with imprisonment up to 2 years or fine, or both”.
  • When rape is committed against judicially separated wife, “offence punishable with imprisonment up to 2 years and fine”
  • When the age of the wife is above 15 years, no provision for punishment.[12]

This classification of marital rape raised a serious question before the judiciary i.e. what is the reasoning behind considering only rape of wives below 15 years of age and not the whole group? And also why if the rape is committed against the wives between 12-15 years of age attracts milder punishment?

The idea behind such classification is a recommendation of 42nd report of The Law Commission of India who advocated to exclude marital rape from section 375 of IPC and gave reasoning for it as: 

“The prosecutions for this offence are very rare. We think it would be desirable to take this offence altogether out of the ambit of section 375 and not call it rape even in a technical sense. The punishment for this offence may also be provided in a separate Section”[13]

This recommendation of law commission attracted lots of criticism from feminists groups who wanted the exception clause to be deleted from the definition of rape under sec 375 of IPC. Finally, after lots of hullabaloo task force on women was set up by the Woman and Child Department to review all the existing legislation regarding marital rape. The task force after reviewing all the legislation took up the view that the definition of rape to be broadened to include even marital rape committed against wives above 15 years of age.  

Later the same view was adopted by the 172nd report of law commission of India that suggested the term “rape” under section 375 of IPC should be replaced by the term “sexual assault” to make the definition broader. 

In 2005, finally, the first attempt was made by the government to provide justice to marital rape victims by introducing the Protection of Women from Domestic Violence Act, 2005 that though did not recognize the marital rape as a crime but consider it is in the form of Domestic Violence. According to this Act, if a husband committed marital abuses of his wife, the woman will go to Court seeking legal separation from her husband. This act gives a ray of hope to the women who have undergone marital rape.[14]

In 2012, Justice Verma Committee who was set up to improve anti-rape laws legislation also recommended to broaden the definition of rape and the exception of marital rape to be removed from section 375. As per the committee “The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.[15]

Even after these recommendations, the suggestion to criminalize marital rape did not find a place in the Criminal Law Amendment Act 2013.

CONSTITUTION OF INDIA AND MARITAL RAPE LEGISLATION

As per the Indian constitution, every law must be in confirmation with the basic structure of the constitution and if any law violates it then it is to be declared ultra vires and struck down by the Court. The legislation regarding marital rape is also not in confirmation with the constitution as it is in violation of Article 14 and Article 21 of the Indian constitution, It also needs to be struck by the Courts as well.

ARTICLE 14: EQUAL PROTECTION OF LAW 

Article 14 of the constitution of India states “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” [16]Hence it means all the people should be treated equally and must provide equal protection of the law. However, Article 14 does not require every person to be treated equally in all situation but it means like should be treated alike. It provides the provision for classification among unlike individuals which are based on two condition

  • There must be intelligible differentia that separate group from others.
  • The differentia must have some nexus with the object sought to be achieved.[17]

In the case of marital legislation, there is no intelligible differentia between two classes of married women based on their age hence such classification is invalid and should be struck down by the Court. The distinction between unmarried and married women under sec 375 is also violative of Article 14 as it does not provide any rational nexus between distinction and object sought to be achieved. The above legislation also denies married women to have equal protection from rape and sexual harassment.[18] Therefore we can sum up marital legislation in India is in gross violation Article 14 of the Indian constitution.

ARTICLE 21: RIGHT TO LIFE AND PERSONAL LIBERTY

Article 21 of the Indian constitution states “no person shall be denied of his life and personal liberty except according to the procedure established by law.”[19] It means every person has the right to life and personal liberty in India which includes the right to health, privacy, dignity, etc.

Marital legislation in India violates the host of rights that are included in the expression of the right to life and personal liberty under this Article. The marital exemption violates the right to good health, right to sexual privacy, right to self-determination of body, right to live with dignity, etc.

  • Right To Good Health– Article 21 provides us right to good health under the expression of the right to life however marital legislation in India is violative of right to good health too as the absence of marital rape laws encourages men to coerce their wives to have sex which causes serious physical and psychological harm on them. Sometimes it throws them in deep emotional crisis.[20]
  • Right To Sexual Privacy– The Supreme Court in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India[21]held that the “right to privacy is a fundamental right and included under Article 21 of the constitution. This case ensures that every person has the right to privacy under Article 21.” Similarly In the case of State of Maharashtra v. Madhukar Narayan[22]The Supreme Court held that “every woman was entitled to sexual privacy and it was not open to for any and every person to violate her privacy as an when he wished or pleased.” This case ensures that it is the right of the women to be left alone and any forceful sexual intercourse violates such rights. Hence in marital rape, husbands violate the sexual privacy of their wives as per their wishes which is a gross violation of this Article.[23]
  • Right To Self Determination Of Body – As per Article 21 every person has the right to decide on their body or matter associated with the body. Consent of sex is one of such decision however in the marital rape husbands coerce her wives to have sex without her consent sometimes also they make decisions regarding their body which is a violation of the Right to Self Determination of Body.[24]

Hence we can sum up, the marital exemption doctrine in India is not only unconstitutional but it also deprives women of their basic rights. It is violative of both Article 14 and Article 21 as it does not pass the test of “just, fair and reasonable” laid down in Maneka Gandhi v. UOI[25].

ROLE OF JUDICIARY

The role of the judiciary in the matter of marital rape is quite mixed. History of judicial decisions in the matter of forceful sexual intercourse by husband on her wife was traced back to the case of Queen-Empress v. Haree Mythee[26]in which Court observed that “In case of married women, the law of rape does not apply between husband and wife after the age of 15; even if the wife is over the age of 15, the husband has no right to disregard her physical safety, for instance, if the circumstances are such that intercourse is likely to cause death.” In this case, the Court though did not recognize the offence of marital rape but still protects women if sexual intercourse committed in a manner that causes physical injury to her. Similarly, in the case of Emperor v. Shahu Mehrab,[27]the husband was convicted under 304A of IPC for causing the death of her wife due to forceful sexual intercourse.

In the case of Saretha v. T. Venkata Subbaih[28]Court held that “There can be no doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of a person.” In this case, the Court stated that “if it enforces sexual intercourse between husband and wife then it would amount to a violation of one’s conjugal rights and privacy.” [29]In the case of Sree Kumar v. Pearly Karun,[30]there has been an ongoing divorce dispute between husband and wife thereafter, the matter was settled between them and the wife started living with her husband however after some time wife alleged her husband to commit forceful sexual intercourse on her. The Court, in this case, held that since the wife was living with her husband and they were not judicially separated, it does not attract 376A of IPC. Consequently, the husband was declared not guilty. 

 In the recent case of Nimeshbhai Bharatbhai Desai v. State of Gujarat, Gujarat High Court dealt elaborately with the question of marital rape in India and held that “making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape.”[31] However, due to the absence of any legal framework for marital rape under the Indian penal code, the Court held that “the husband is liable only for outraging her modesty and unnatural sex.” Similarly, The Supreme Court in the case of Independent Thought v. Union of India and Anr[32]Criminalized sexual intercourse with a minor wife between 15 and 18 years of age but did not make any observation regarding marital abuse of adult women[33].

From the above analysis, we can sum up, though in recent years Court has begun to acknowledge one’s right to abstain from sexual intercourse in most cases Court seems to have established a notion that marriage is a sacrosanct thing, interference of judiciary in such matter is a violation of their conjugal’s right.

ARGUMENT AGAINST CRIMINALIZATION OF MARITAL RAPE

  • One of the arguments against the criminalization of marital rape is women have already adequate remedies under 498A of IPC and Protection of Women from Domestic Violence Act of 2005. 498A deals with the atrocities committed by the husband and his relatives against the wife while Protection of Women from Domestic Violence Act deals with sexual or physical abuse of women in the form of domestic violence.[34]
  • Another argument against the criminalization of marital rape is marriage in India considered as sacrosanct activity hence any interference of the judiciary would destroy the institution of marriage as it prevents the couple from any future reconciliation.
  • Implied consent is another argument against the criminalization of rape which is based on the idea of sir Matthew Hale who said that the “husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.” It means when women married to men, they give implied consent to bind by her husband physically and mentally.[35]
  • The most common argument put forth by advocates for maintaining exemption of marital rape is this law will give license to angry, dissatisfied wives to falsely accuse their husbands.

These arguments against the criminalization of marital rape laws are just fanciful excuses to maintain the dominance of husbands over wives in this patriarchal society.

CONCLUSION

The continued immunity to marital rape remains the wife’s presumption as to the husband’s exclusive possession. As per “Katherine O’ Donnovan”, “Its immunity from the purview of the criminal law is explained because the female victim is a wife. This justification can be understood in the context of the dominant familial ideology and female sexuality which treats a wife as property and as having no sexual agency or decision making in sexual activity within the marital contract”.[36]

It is contended that there should be criminalization of matrimonial rape which can be accomplished by enforcing a method to prevent violence against women concerning the rights of women. Indian feminist groups have been successful in raising awareness and passing legislation against violence, but it has not been completely penalized by repealing the differentiation between matrimonial and stranger rape. But such rape will not be penalized until lawmakers and society recognize the rights of married women.

“The idea about non-marital and marital rape in Indian society stems from the idea of gender, shame and family honour, instead of the women’s rights and individual freedom”.[37] Unless the legislators take steps against sexual assault against women, then only there would be legal sanction for marital rape and then the only dignity of women can be preserved. It is the requirement from the civil society to make awareness about the rights of women and lawmakers to make stringent laws against marital rape.

We would like to give suggestions to combat marital rape. First, the lawmakers should repeal the immunity given to marital rape under the IPC. The lawmakers can alternatively insert a section for criminalizing marital rape through amendment. If not penalised marital rape it reinforces stereotypes and prejudices against women including the belief that marriage implies consent and women lose their rights once enter the matrimonial relationship.

Second, the government needs to reinforce effective police practices. Antagonistic police behaviour is a major obstacle that firstly discourages women from reporting violent acts. Additionally, law enforcement discretion authorizes policemen to refuse to file cases, pose another obstacle for women reporting marital violence. Third, there is also a need to question the enmity depicted by the judicial system in past cases of marital violence where the bench has continuously underrated the severity of marital rape. Such practices can be effectively combated by suggesting court directives for imprisonment in cases of marital sexual abuse. It is also essential that judicial authorities are given sexuality-sensitive training. Fourth, an important component of ensuring proper prevention of marital sexual violence, the Government wants to ensure that women have access to important support structures. Many women will not report sexual abuse to authorities, especially in rural areas of India may be due to financial dependence on their husbands. They fear they will be left without any alternative support system if they are isolated from their spouses. Finally, India’s persistence of marital rape can be traced from ingrained patriarchal ways of thinking as well as debilitating socio-economic structures that are widespread across the country. Women are less likely to disclose cases of rape within their matrimony due to the social stigma associated to rape victims in India and also the dishonor that targets women who fail to “make their marriage work.” In addition to informing girls about their rights, it is vital to educate men and boys in the fight against marital rape and the overall goal of achieving it.


* Students of National Law University Odisha, Cuttack.

[1]Eastern Book Company – Practical Lawyer, , https://www.ebc-india.com/lawyer/articles/645.htm (last visited Apr 10, 2020).

[2]Beyond Rape: An Essay on the Difference between the Presence of Force and the Absence of Consent on JSTOR, , https://www.jstor.org/stable/1123045?seq=1#metadata_info_tab_contents (last visited Apr 10, 2020).

[3]Sexual violence against women: Understanding cross-cultural intersections, , https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3777345/ (last visited Apr 10, 2020).

[4]Marital rape is not a crime in India. It needs to be. – Equality Now, , https://www.equalitynow.org/marital_rape_is_not_a_crime_in_india_it_needs_to_be (last visited Apr 10, 2020).

[5]Power, Sex, and Violence: The Case of Marital Rape on JSTOR, , https://www.jstor.org/stable/581754?seq=1#metadata_info_tab_contents (last visited Apr 10, 2020).

[6]Pooja Chaudhuri Chaudhuri, “Marital Rape Laws Will Be Misused By Women” Is A Flawed Argument; Here’s How The Accused Can Be Punished (2017), https://thelogicalindian.com/story-feed/awareness/marital-rape-can-be-proven/ (last visited Apr 10, 2020).

[7]Marital rape a crime in many countries, an exception in many more | Explained News,The Indian Express, , https://indianexpress.com/article/explained/marital-rape-a-crime-in-many-countries-an-exception-in-many-more-4821403/ (last visited Apr 10, 2020).

[8]Marital rape outlawed by Nepal’s supreme court | Panos London, , http://panoslondon.panosnetwork.org/features/marital-rape-outlawed-by-nepals-supreme-court/ (last visited Apr 10, 2020).

[9]UN Women justice report: get the data | Global development | theguardian.com, , https://www.theguardian.com/global-development/poverty-matters/2011/jul/06/un-women-legal-rights-data (last visited Apr 10, 2020).

[10]“Section 375, Indian Penal Code 1860.”

[11]“Sumedha Choudhury, Why criminalisation of marital rape is still a distant dream in India, Business Standard India, October 29, 2018, https://www.business-standard.com/article/current-affairs/why-criminalisation-of-marital-rape-is-still-a-distant-dream-in-india-118102900084_1.html (last visited Apr 10, 2020).””

[12]issue2.pdf, , https://www.galgotiasuniversity.edu.in/pdfs/issue2.pdf (last visited Apr 10, 2020).

[13]Id.

[14]India Law Journal, , https://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html (last visited Apr 10, 2020).”

[15]Choudhury, supra note 2.

[16] Article 14, Constitution of India.

[17]Marital Rape: A Non-criminalized Crime in India, , https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/ (last visited Apr 10, 2020).”

[18]. India Law Journal, supra note 5.

[19]Article 21, Constitution of India

[20]issue2.pdf, , https://www.galgotiasuniversity.edu.in/pdfs/issue2.pdf (last visited Apr 10, 2020).

[21]Justice K.S. Puttaswamy (Retd.) V Union of India,(2017) 10 SCC 1 (India).

[22]State of Maharashtra V Madhukar, NarayanAIR 1991 SC 207 (India).

[23]issue2.pdf, supra note 11.

[24]“Eastern Book Company – Practical Lawyer, , https://www.ebc-india.com/lawyer/articles/645.htm (last visited Apr 10, 2020).”

[25]Maneka Gandhi V UOI, 1978 AIR 597 (India).

[26]Queen-Empress V Haree Mythee,(1891) ILR 18 Cal. 49 (UK).

[27]Emperor V Shahu Mehrab,AIR 1917 Sind 42 (India).”

[28]Saretha V T. Venkata Subbaih,AIR 1983 AP 356 (India).”

[29]“Deepriya Snehi & Mahima Shrimali, Making Women Alternatively Empowered Beyond Measure. (With Reference To The Criminal Amendment Act, 1983) 6.

[30]Sree Kumar V Pearly Karun,1999 (2) ALT Cri 77(India).”

[31]Saba, Marital rape: A husband cannot be permitted to treat his wife like a chattel and violate her dignity, SCC Blog (2018), https://www.scconline.com/blog/post/2018/04/18/marital-rape-a-husband-cannot-be-permitted-to-treat-his-wife-like-a-chattel-and-violate-her-dignity/ (last visited Apr 10, 2020).”

[32]Independent Thought V Union of India and Anr,(2017) 10 SCC 800 (India).

[33]Choudhury, supra note 2.

[34]Marital Rape, supra note 8.”

[35]Id.

[36]Katherine O’Donovan, Defences for Battered Women Who Kill, 18 Journal of Law and Society 219–240 (1991).

[37]Krina Patel, The Gap in Marital Rape Law in India: Advocating for Criminalization and Social Change 29.

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