Marital Rape And The Way Forward

1. INTRODUCTION

Marital rape is defined as having sexual intercourse with ones wife without getting their consent. While rape is illegal in our country with society also accepting its heinous nature, marital rape is neither illegal in our country nor it looks like society recognises it as harmful. This is supported by the remarks made by our parliamentarians during discussions on this topic in our parliament. Not criminalizing marital rape makes us one of the 32 countries which does not recognize marital rape as a crime.[1]The majority of the nations on this list, which includes Saudi Arabia, Bangladesh, Ghana, and Pakistan, have conservative and patriarchal societies. The marital rape exception was added to our IPC by the English. It is striking to note here that Britain criminalized Marital rape in 1991 but it is still in effect in our country. With recent events, to criminalize or not criminalize marital rape has become a legal quandary which needs to be solved taking into consideration the call for gender justice and basic fundamental rights.

2. HISTORY

Throughout history, women have been subjugated by men. Although their status has varied throughout history, it has never reached parity with that of men.

A. BABYLONIA

It was believed that a daughter or wife was the property of a father or husband and was primarily confined to domestic duties.

B. ANCIENT INDIA

Women in ancient India were regarded as property and it was the duty of males to protect them.

Fathers were responsible for safeguarding their daughters' chastity before marriage and after marriage, this responsibility shifted to the husband and his family. So rape was viewed as both a theft of a womans property and a crime against her husband or guardian.[2]

C. BRITISH EMPIRE

Talking about women's sexual rights was frequently frowned upon during the Victorian era and earlier times. Women's freedom of sexual orientation was severely curtailed, and modesty and chastity were seen as a virtue. The legal system did not recognize marital rape as a crime.

As Victorian morality and middle-class mentality grew in the 18th and 19th centuries, rape came to be associated with a woman's sexual purity being violated.

One of the most influential ideas at this time(18th century) was the Contractual Consent Theory which was given by Matthew Hale in 1736. It stated that a husband cannot be guilty of rape, since by their mutual matrimonial consent and contract the wife has given up herself in this kind to the husband.[3]

D. INDIAN PENAL CODE, 1860

English were ruling India and in the year 1860, Indian Penal Code was passed into law. The Indian Penal Code(IPC) was highly influenced by British ideas and accordingly Marital rape was not recognized as a crime in India too.

E. DOMESTIC VIOLENCE ACT, 2005

With the development of Indian society, the Domestic Violence Act was passed in 2005 to provide for more effective protection of the rights of women who are victims of violence of any kind occurring within the family. This law defines domestic violence broadly to include physical, sexual, emotional, verbal, and economic abuse. It can be used to seek protection, restraining orders, and compensation for victims of marital rape.[4]At present, any aggrieved woman files cases of sexual violence by her husband under this Act. However, the act doesn't specifically criminalize marital rape.

3. SECTION 375 AND EXCEPTION 2

Section 375 of the Indian Penal Code defines Rape. Exception 2 states that Sexual intercourse or sexual acts by a man with his wife, the wife not being 18 years, is not rape.[5]This section makes marital rape not a crime if the wife is above 15 years of age.

The exception is based on 4 assumptions:

A. Contractual Consent Theory

B. Doctrine of Coverture: This theory states that a woman has no legal rights after her marriage.

C. Consent in perpetuity: This is the assumption that once married, a woman gives her permanent consent, which she cannot retract. This concept in the colonial-era law is rooted in the idea that a woman is the property of the man who marries her.[6]

D. Expectation of sex: This is the assumption that a woman is duty-bound or obligated to fulfil sexual responsibilities in a marriage since the aim of marriage is procreation. And since the husband has a reasonable expectation of sex in a marriage, the provision implies that a woman cannot deny it.[7]

4. LEGAL PRECEDENTS

In independent India, several cases came in the court to recognise marital rape as a crime through court decisions. Though with time courts have recognised marital rape as a crime for a married girl till 18 as opposed to 15 as provided in exception 2 of section 376 but marital rape in general as a crime has not been recognised to date.

A. SAKSHI v. Union of India[8]

The petitioner had requested that all forms of non-consensual penetration should be subsumed under Section 375. They wanted sexual intercourse without the consent of the wife to be considered a punishable offence.

Judgement: The court upheld the existing definition under Sec. 375 and stated that the existing definition of rape as contained in Section 375 IPC is well settled.

B. Independent Thought v. UOI Anr.[9]

The petition was filed under Article 32 of the constitution in the public interest is rape regardless of whether she is married or not.

Judgement: The Supreme Court held Exception 2 of Section 376 as unconstitutional and struck down. The court held that sexual intercourse with a girl child below 18 years is rape.

This judgement increased the age of girls from 15 to 18 under Exception 2 of Section 376 of IPC. The judgement was prospective in nature.

C. RIT Foundation v. Union of India

The marital rape exception under Section 376 was challenged by the petition

Judgement: A split verdict was given.

Justice Shakdher stated that the exception was unconstitutional as it was discriminatory and violated a womans bodily autonomy and expression. On the other hand, Justice Shankar held that in the institution of marriage, sexual relations whether consensual or non-consensual, are a legitimate expectation making the exception to rape legal.[10]

D. Karnataka High Court March 23, 2022 decision

Karnataka High Court had refused to quash charges of rape brought by a wife against her husband. The judgment defied the exception provided in the rape law.[11]

Later Supreme Court also refused to Stay Karnataka HC Judgment Which Sustained Section 376 IPC Charges Against Husband On Wife's Rape Complaint.[12]This can be interpreted as the Supreme Court's support for the way towards criminalizing marital rape.

5. JURIST OPINION

Jurist opinions are crucial in shaping and guiding the legal landscape of a country by offering interpretations, creating precedent, guiding legislative decisions and influencing public discourse on legal matters. Several Judges and academicians have given significant compelling suggestions to consider making marital rape a crime in India irrespective of age criteria that currently exist. Some of the important

A. Justice JB Pardiwala ( in support of criminalization)

"A wife is not a chattel and a husband having sexual intercourse with his wife is not merely using a property, he is fulfilling a marital duty with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing his wife to engage in a sexual act without her full and free consent." was said by Justice JB Pardiwala in the case of Nimeshbhai Bharatbhai Desai v. State of Gujarat.[13]

B. Chief Justice DY Chandrachud ( in support of criminalization)

Does a woman or man lose their degree of sexual autonomy after marriage? According to me no' and "The right to say "no" to sex should be there after marriage also".[14]These statements were given by the Chief Justice while hearing debate and discussion on jurisprudence which forms the basis of the provision, gender discrimination and violation of Article 14.

C. Former Chief Justice Dipak Misra (against criminalization)

I do not think that marital rape should be regarded as an offence in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values. He further said that marital rape is a crime borrowed from other countries and is not applicable to India.[15]

6. MARITAL RAPE: REASONS TO CRIMINALIZE

There can be different reasons to support the need for criminalizing marital rape in India which range from the physical and mental health of the women to giving equal status to women in making rational choices for their body. Statistics also indicates towards an urgent need to bring marital rape law to make women feel safe in their home.

A. DISTURBING STATISTICS: Estimates from the third (200506) and fourth (201516) rounds of the National Family Health Survey (NFHS) revealed that the prevalence percentage of Intimate Partner Violence (IPV) against women ranges between 3% and 43% in different states of the country. In the fifth round (2019-2020) samples from 28 states and eight union territories, 1 in 3 Indian women between the ages of 18 and 49 report having experienced spousal violence, and at least 5%6% report having experienced sexual violence.[16]In a country like India, the figure in actual numbers comes out to be staggering and should be a cause of concern for any rational society. Women as human beings have a basic right to feel safe at home and not giving them this right, questions our moral righteousness. We proclaim ourselves as a developed and modern society but do not provide women the basic freedom to say NO when it's appropriate for them to say so. She endures all the wrongs in realizing that there is no legislation protecting her from these misdeeds. Husbands also do not have any moral and mental sanction in lack of laws.

B. BIOLOGICAL: From a biological standpoint also the claim to criminalize marital rape can be justified. Before consensual sexual contact, the body prepares for the same but if the act is non-consensual and forceful in nature, the body does not produce the required hormone and this leads to genital and non-genital injuries. According to data[17]from the National Library of Medicine the proportion of sexual assault victims detected with genital injury ranged from 6%-87% (17-28, 30, 3744). Other consequences include short-term physical trauma, chronic illnesses and headaches, mental health illnesses such as depression, sexually transmitted diseases, and unwanted pregnancy.[18]These data speak volumes and give sufficient reasons to criminalize marital rape as a crime and protect women from both physical and mental health.

C. LEGAL: From a legal point of view, marital rape is a clear violation of Article 15 and Article 21. Through earlier discussion, it is clear that there is a gross violation of the right to life of women. It violates a woman's right to autonomy under Article 21. Article 21 also includes the right to sexual health, and the right to sexual health includes protection from sexual coercion, violence and discrimination. Marital rape is clearly a violation of this provision. Article 15 provides the right to equality but Exception 2 of Section 376 makes the distinction between married and non-married women which is unreasonable and unjustified. Marital status in no way makes one bearable to rape nor it takes away their bodily rights. No other provision of IPC makes a distinction based on marital status as intelligible differentia in Chapter XVI: Of Offences Affecting the Human Body.[19]There is no reasonable intelligible differentia and so the distinction fails.

D. PSYCHOLOGICAL: It also affects women psychologically as it leads them to question the very notion of trust. Seeing violence coming from their husband, who is so close to her, affects her psychologically and leads her to see the world with a distrustful lens. It makes her insecure and afraid everywhere, even at her home.

E. FLOWED INTERPRETATION BY THE PARLIAMENT: It is often seen that the opponents of the law state that if marital rape law is brought then it(marital rape law) will have a destabilising effect on the institution of marriage as stated by the Indian government in 2017.[20]

On a legal basis, it is argued that a law or exemption cannot be justified unless it serves a legitimate and rational purpose. Independent Thought v. Union of India involved a State argument that married women between the ages of 15 and 18 should not be covered by a specific clause since it purported to be about "preserving the institution of marriage." The court dismissed this line of thinking, stating that marriage is personal, not institutional. It was essentially at odds with how the State defined marriage. The court held that the institution of marriage could not be seriously threatened by anything other than a statute outlawing marriage. Therefore, the argument that an exception is justified to protect the institution of marriage is flawed from the outset because the premise on which it relies - that marriage is institutional - was dismissed by the court.[21]

Also, the nature of crime necessitates the intervention of the state. The nature of the crime committed by the husband by no means makes it a private matter. The state must intervene where the nature of crime is so severe that it affects the very foundation of society. Supreme Court in Justice KS Puttaswamy (Retd) v. Union of India[22]has already said that privacy must not be utilised as a cover to conceal and assert patriarchal mind-sets.

7. CRITICISM

It is crucial to remember that criminalizing marital rape is a complicated topic with many opposing viewpoints. While some want marital rape laws but it is also true that there is a large section of people( as governments dont bring laws criminalizing marital rape laws fearing reactions from people) who think that it will have a detrimental impact on society. Hindustan Times states[23]that generally 4 main arguments are raised against criminalizing marital rape:

A. Allowing wives to complain about rape will destroy the family.

Critical Analysis: Earlier arguments and evidence while explaining "Flowed interpretation by the parliament" are sufficient to debunk this argument.

B. By definition, sex within marriage can never amount to rape.

Critical Analysis: Rape is defined as sexual intercourse without consent, and consent must be given freely and voluntarily.[24]Therefore, if a spouse is forced or coerced into having sex against her will, it can be considered rape, regardless of her marital status. Married women will not fall out of the definition because all the ingredients of the law will be fulfilled. It is only the exception provided in law, that makes marital rape not a crime and takes away the rights of the married women to approach court for injustice done towards them.

C. Criminalisation of marital rape would violate the privacy of marriage by (to put it euphemistically) allowing the State into the bedroom.

Critical Analysis: Earlier arguments and reasons through KS Puttaswamy's judgement make this argument flat.

D. It would become a weapon of abuse in the hands of unscrupulous wives.

Critical Analysis: If we consider this argument then also it is an implementation issue rather than a policy failure. A law cannot be stopped just because there are chance of its misuse. Various provisions in the Indian constitution give arbitrary and absolutes powers to the government like Emergency powers which can be grossly misused but it is constitutional in nature. The onus is on the state to prevent misuse of laws. Statistics like 85% of dowery cases are false[25]and do not make calls for the abrogation of dowery prevention laws itself. The question of how to prevent legal misuse is examined rather than called for complete abrogation of law. Also, it is a statistically proven fact that an overwhelming percentage of sexual assaults are committed not by strangers, but by persons familiar to the survivor.[26]It makes marital rape law more relevant for women.

But there is one genuine concern that is bound to arise. It relates to the evidence that will provided to corroborate the charges. Presently, the statement of a rape victim is considered as an important piece of evidence in rape cases. There are other eyewitnesses that corroborate the statement but marital rape takes place in a completely different setting. There is only a husband and wife, and depending solely on what the wife says could lead to widespread legal abuse. Also, the wife is sexually active, which is often not the case in ordinary rape cases. In most cases, there are no visible injuries or signs of struggle, which will make it difficult to prove that rape has occurred.[27]When drafting marital rape legislation, these are legitimate concerns that need to be addressed and taken into consideration by relevant stakeholders.

8. CONCLUSION

India has a habit of holding off on making reforms until a significant incident shakes the nation. Increasing the scope of rape under section 376 was always advocated but no change was brought until the unfortunate Nirbhaya incident. Are we waiting for some horrifying incident to wake up and criminalize marital rape? Reforms brought in this way have a major flow in that they make laws based on one viewpoint, the viewpoint of one horrific incident. All incidents will not necessarily fit into it so it is better to bring laws before an unfortunate incident takes place by taking sufficient time and considering all possibilities rationally.

Marital rape is wrong against women which causes them deep psychological, mental and physical pain. This pain comes from the person she is most close to. Because the victim in this case must regularly live with her abuser, marital rape is far more terrifying for her. Her husband becomes the Damocles Sword for her. The threat of violence always remains close to her. Also, women cannot be told to protect the institution of marriage at the cost of deep pain while the husband fulfils his uncontrollable desires. This clearly makes her subservient to his male counterpart defeating the equality provision of the constitution. Legislation criminalizing Marital rape cannot be ignored in this situation. Certainly, there are unanswered question, which asks genuine questions for the protection of the husband and legislation against marital rape cannot overlook these pressing issues. The legislation must take into account the rights of both partners. Bringing laws overstepping the rights of another will defeat the purpose. Jurists, academicians, stakeholders and legislators must work together to bring a desirable law.

Positive legal changes for women are need of hour.

9. CITATIONS

[1]LEGAL SERVICIE INDIA,https://www.legalserviceindia.com/legal/article-7872-marital-rape-laws-an-international-overview.html( Last visited Nov 29, 2023).

[2]PRIME LEGAL,https://primelegal.in/2022/05/31/marital-rape-in-india-can-it-be-criminalized/( Last visited Nov 29, 2023).

[3]DRISHTI IAS,https://www.drishtiias.com/daily-updates/daily-news-analysis/marital-rape-in-india-1( Last visited Nov 29, 2023).

[4]AISHWARY SANDEEP,https://aishwaryasandeep.in/marital-rape-and-section-375/( Last visited Nov 29, 2023).

[5]INDIAN KANOON,https://indiankanoon.org/doc/195673915/( Last visited Nov 29, 2023).

[6]INDIAN EXPRESS,https://indianexpress.com/article/explained/explained-law/sc-marital-rape-issues-and-arguments-8848358/( Last visited Nov 29, 2023).

[7]INDIAN EXPRESS,https://indianexpress.com/article/explained/explained-law/sc-marital-rape-issues-and-arguments-8848358/( Last visited Nov 29, 2023).

[8]INDIAN KANOON,https://indiankanoon.org/doc/1103956/( Last visited Nov 29, 2023).

[9]CASEMINhttps://www.casemine.com/judgement/in/59de637cce686e237b6a8bda( Last visited Nov 29, 2023).

[10]SCO,https://www.scobserver.in/cases/challenge-to-the-marital-rape-exception/#:~:text=On%20May%2011%2C%202022%2C%20a,woman%27s%20bodily%20autonomy%20and%20expression( Last visited Nov 29, 2023).