This article has been written by Rupsa Chattopadhyay, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho and edited by Shashwat Kaushik.
It has been published by Rachit Garg.
Table of Contents
Introduction
There is an existing debate about marital rape and its implications on the society we live in. On one side, there is a perception that marital rape is to be criminalised if we are to live in a civilised society where women are granted basic autonomy over their bodies.On the other hand, there is a vehement opposition to the criminalisation of marital rape. In the article, the attitude towards marital rape as well as the pervasive reluctance to criminalise it are discussed.
What is marital rape
Marital rape is rape committed within the institution of marriage. That is to say, it is the rape of one spouse by the other. Marital rape is an unwanted sexual intercourse by a husband on his wife by the use of force or when consent is not freely given. It is a disgrace to society that has scarred the trust and confidence of women in the legal system. There exists a huge population of people who are adversely impacted by the failure to criminalise marital rape. Marital rape is considered an aspect of domestic violence. Domestic violence is violence committed against a person by a person living in the same household.
Section 3 of the Protection of Women from Domestic Violence Act, 2005 states that acts of “sexual abuse” as well as “verbal and emotional abuse” are included in domestic violence. Marital rape is clearly covered by both.
According to the World Bank, over 100 countries have criminalised marital rape. India is among the 36 countries that have not criminalised marital rape. Though the rape laws of India have been amended several times, marital rape remains an exception to the definition of rape under Section 375 of the Indian Penal Code, 1860.
Historical perspective of marital rape
Marital rape is a gross violation of basic human rights. Historically, women have been considered the chattel of men. In several parts of the world, the rape of women was seen as a vandalization of men’s property.
The doctrine of coverture explains the attitude towards the identity of married women. The doctrine of coverture was a legal doctrine in which a married woman‘s identity was considered the same as that of her husband, and there was no distinction. After marriage, the legal rights of a woman are covered by her husband. A married woman had basically no separate legal existence.
Legal perspective
Section 375 of the Indian Penal Code, 1860, covers the provisions of rape, including gang rape and rape by employer. However, marital rape has been exempted under Exception 2 of Section 375. It states that sexual activities by a man with his wife are not considered rape as long as the wife is not under fifteen years of age.
In 2013, the Justice Verma Committee, formed after the Nirbhaya rape case, recommended criminalising marital rape. However, the following argument were given for the rejection of the idea: –
- The criminalisation of marital rape will destabilise the institution of marriage.
- Marriage gives implied consent for sex.
- The burden of proof on man for proving his innocence becomes colossal.
The Bharatiya Nyaya Sanhita, 2023 has been introduced as a Bill in the Lok Sabha. Some changes have been introduced in the Bill that promise progress. Section 63, which defines rape, still exempts marital rape, though the age has been increased to 18 years. This shows that even in 2023, the need for criminalisation of marital rape is not felt by the Parliament.
The case of Independent Thought v. Union of India and Anr. (2017) was filed in the form of a civil writ petition. In this case, Independent Thought, a child rights organisation, challenged the validity of Exception 2 to Section 375. The Supreme Court held that sexual intercourse between a man and his wife between the ages of 15-18 without consent would amount to rape. Thus, the age of consent was increased from 15 to 18. However, no substantial change was brought about related to marital rape; only the age of consent was changed.
In the case of Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018), it was reiterated that it is not possible for a husband to be prosecuted for the offence of rape under Section 376 of the IPC. This is because Section 375 of the Indian Penal Code, 1860, does not cover marital rape. Exception 2 to Section 375 states that the sexual activities of a man with his wife, not under the age of 18, do not amount to rape.
In the case of Khushbu Saifi v. Union of India and Anr. (2021), the Division Judge Bench of the Delhi High Court passed a split verdict on marital rape. One of the judges, Justice Rajiv Shakdher, held Exception 2 to Section 375 unconstitutional.
Justice C. Hari held that a distinction between married and unmarried couples cannot be made as there is a lack of rational nexus with the object of protecting a woman from sexual acts to which she does not consent.
The exception to marital rape fails to meet such a nexus. Here, the perpetrator is protected merely because of his relationship to the victim. There is an arbitrary distinction made between nonconsensual sexual acts against women simply based on such a relation. Justice Hari reiterated that the exception clause for marital rape violates Article 14 of the Constitution of India.
The failure to criminalise marital rape causes discrimination against women based on their marital status. Hence, marital rape violates Article 15 of the Indian Constitution.
Aside from this, Justice Shakdher mentioned that Section 375(2) is violative of Article 19(1)(a) of the Indian Constitution, which grants freedom of expression to every citizen of India. Such rights include the right to sexual autonomy as well as agency.
An unmarried woman who is a victim of rape can make a complaint under the criminal laws. However, a married woman who is a victim of marital rape lacks such a right. This is blatantly unjust. The offence remains the same, irrespective of the perpetrator. A woman’s right to withdraw her consent at any point in time is part of her right to life and personal liberty. This shows that marital rape is a violation of Article 21 of the Constitution of India as well. He mentioned that it is unjust that sex workers have the right to refuse sexual acts, but a married woman lacks such a right. Marital rape, which is given under Section 375(2), has to be called out. This will reflect that society does not condone the unconsensual sexual acts of a husband against his wife under the garb of marriage.
On the other hand, Justice C. Hari felt that the criminalisation of marital rape is not feasible now; several other factors are to be considered, and the criminalisation has to be done by the Legislature.
Justice Rajiv Shankar ruled against the criminalisation of marital rape. He observed that, as per the Indian Penal Code, there can be no rape within a subsisting marriage. There is no discrimination when non-consensual sexual acts within marriage are treated differently from those outside marriage. The exception 2 to Section 375 of the Indian Penal Code is based on a rational nexus that the Code seeks to achieve. Thus, it does not violate any right granted under Part III of the Indian Constitution. According to the Hon’ble Judge, the Court lacks the right to ascertain whether the object justifies such a distinction. A writ pertaining to the query would violate the boundaries of authority under Article 226 of the Indian Constitution.
Thus, from the split verdict passed by the Division Bench of the Delhi High Court, it appears that there are different views regarding marital rape in society.
The case is to be heard in the Supreme Court in Hrishikesh Sahoo vs. State of Karnataka (2018) by a three-judge bench. One of the judges hearing the matter is the Chief Justice of India- Justice D.Y. Chadrachud, the Chief Justice of India. The other judges are Justice P.S. Narasimha and Justice J.B. Pardiwala. In this case, the Apex Court is to give a verdict on whether the exception clause to marital rape is constitutional.
Perception of marital rape by society
In India, women are still considered the property of men. They are considered the property of their fathers or brothers, and after their marriage, their husbands. Women are entrusted to the care and protection of their husbands after their nuptials. Common folks think that marriage is a licence to sexual intercourse between a husband and wife and find it difficult to perceive that consent is required in such sexual intercourse. The same view is upheld by legislators and several judges.
Why marital rape is not criminalised
There are several reasons why marital rape has not been criminalised. Following are some of the reasons in India:
Lack of awareness
In India, there is a lack of understanding about the concept of consent. Sexual intercourse between a man and his wife is considered to be inevitable. The requirement of such consent is considered a mere formality and of no value. Hence, the need for the criminalisation of marital rape is not understood.
Difficulty in proving
Crimes like domestic violence and marital rape are committed within the confines of the home. It is difficult to collect evidence for conviction. Even if the victims wish to speak up, they are often persuaded to keep it to themselves and compromise. It becomes difficult to collect evidence and prove that such offences were committed.
Weapons of harassment
Section 498A of the Indian Penal Code, 1860, was considered to be a progressive law that upholds the rights of battered women. However, it was misused in several cases. It became a tool in cases of divorce to harass men and their relatives. It became a tool for vengeance against estranged husbands. It is feared that marital rape will become a similar tool in the hands of women to penalise them and make false allegations against them.
In Sushil Kumar Sharma vs. Union of India (2005), the Supreme Court held that there have been several instances where false cases of domestic violence have been filed with an ulterior motive. The acquittal in such cases fails to remove the black mark of accusation. Hence, some preventive measures are to be taken to prevent the misuse of Section 498A. The legislators have to find a way to ensure that false complaints are appropriately dealt with.
In Manju Ram Kalita vs. State of Assam (2009), the Supreme Court held that to lodge a complaint under Section 478A , the woman concerned must be subjected to cruelty for a consistent duration or immediately preceding the complaint. Mere quarrels do not amount to cruelty.
Reasons to criminalise marital rape
The following are some arguments in favour of criminalising marital rape:
- Women considered chattel of men- If marital rape remains an exception to rape, the view that women are merely property of men will be upheld. This view will be damaging to the views of equality and gender justice. It is also a regressive notion about the existence of women. To reject such a view, criminalisation of marital rape is required.
- Violation of Article 14- Rape is an offence under Section 375 and punished under Section 376 of the Indian Penal Code, 1860. However, marital rape is exempt. This leads to separate treatment of married and unmarried women. Married women are discriminated against and lack the remedy available to unmarried women in the face of the same offence. Such discrimination becomes violative of the right to equality granted under Article 14 of the Constitution of India. The husband being the perpetrator of the crime should not be a ground for exemption.
- Violation of Article 21- Article 21 of the Constitution of India provides the right to life and personal liberty. This includes the right to live with dignity. Marital rape violates the rights of women. It leaves them stripped of basic dignity and respect. It forces them to live a life of utter degradation.
Conclusion
At present, there is a pervasive reluctance towards the criminalisation of marital rape. There are some valid reasons for scepticism about marital rape, particularly its misuse. Aside from it, there is a lack of awareness about the need for criminalisation of marital rape. There are archaic notions regarding the identity of married women and marriage being a licence for sexual intercourse.
However, failure to criminalise marital rape will have far reaching effects on the victims of marital rape. It causes systematic discrimination against married rape victims and unmarried ones.
The dilemma of the criminalisation of marital rape is a complex one. Awareness has to be spread at the societal level about the separate identity and individuality of married women. Men are to be taught about the concept of free consent and that marriage does not provide licence to sexual relations at whim.
Individuals are to be taught that baseless allegations of crime are not to be made. Such allegations weaken the credibility of the actual victims. Citizens are to be made vigilant about the implications of false accusations of crime.
There is a need for vigilance and education. Simply changing laws does not make an impact. However, laws are also needed to make social change. The criminalisation of marital rape has to come with such antecedents.
References
- https://privacylibrary.ccgnlud.org/case/independent-thought-vs-union-of-india-and-ors
- https://www.thehindu.com/news/national/three-judge-bench-to-hear-pleas-relating-tocriminalisation-of-marital-rape-supreme-court/article67097000.ece
- https://www.youtube.com/watch?v=SfI8Y5fxBPY
- http://student.manupatra.com/Academic/Studentmodules/Law-of-Crimes/Indian-Penal-Code-1860/Sexual-Offences.htm
- https://www.scobserver.in/cases/challenge-to-the-marital-rape-exception/
- https://www.maheshtiwarilegal.com/important-judgments/20-leading-jugments-on-498a-ipc
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
