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This article is written by Shivani Bharti, student of Symbiosis Law School, Pune, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com.

Introduction

Rape is defined as a criminal offence in Section 375 of Indian Penal Code, 1860. The Section under its ambit primarily encompasses all forms of non-consensual sexual intercourse and other non-consensual sexual penetration perpetrated against a woman, the punishment of which is mentioned under section 376 of IPC, 1860. However, a shocking exception is made in Section 375 that marital rape i.e non-consensual sexual intercourse by a man with his wife would not be considered as rape. The section of law which essentially demarcates consensual sexual pursuit from non-consensual sexual pursuits, that very law presumes that the consent is implied if a woman is married to the man in question. This presumption is in itself antithetical to the fundamental canon which holds the concept of consent as paramount to penalize rape. This is where the whole debate on why it is important to criminalize marital rape in India starts.

Arguments on marital rape across world

In present date, India remains one of the 36 countries where marital rape is not considered as a crime while only 52 countries considers it to be an insidious offense. Across the jurisdictions that penalize rape but exempts marital rape, one of the predominant arguments put forward is that criminal code criminalizes felony against society howsoever marital rape has been proved hard to be conceptualized because family is supposedly considered beyond public domain. It is also argued that after marriage, in a society like ours which is structured chiefly as patriarchal, the identity of the woman is merged with that of her husband and therefore law does not give the married woman a personality independent of her husband, which is why the criminal jurisprudence holding woman’s consent irrevocable to sexual intercourse with their husband at his will is regarded as valid.

This is to basically say that the justification that is provided in favor of marital rape in the garb to protect the sanctity of the institution of marriage rather looks at the wife as chattel of her husband. However, reason and its ideas do not occupy a pedestal wholly above and exempt from the influence and forces of history. Therefore, the foundation of the marital rape exception can be traced back to statements made by Sir Matthew Hale, C.J., in 17th century England. Hale wrote: “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 in kind unto the husband, whom she cannot retract.” From thereon was established the notion that once married, a women does not have the right to refuse sex with her husband; widely and articulately sending out the message that husband can any day have sexual access over their wives in direct contravention of the principles of basic human rights. Now that we know the perceived idea behind marital rape exception, it is now important that we understand how India perceives marital rape. 

Law on rape in India

Section 375 of the Indian Penal Code, 1860 gives the definition of the offence of rape which includes both sexual intercourse and other sexual penetration such as oral sex perpetrated against a woman contrary to her will, or when she is not in a mental capacity to form an informed decision to engage in a sexual act; that is to say when she is either intoxicated or a minor or under a threat or the consent obtained for sex is equivocal. However, in Exception 2 of Section 375 of IPC, the application of this expansive definition of Rape is exempted when the sexual act in question is between a husband and wife and the wife is not under the age of fifteen. To put it in exact words, Section 375 makes it legal for a husband to rape his wife of age fifteen and above. Interestingly, notwithstanding under section 376-B, when the same wife is living apart from her husband on account of judicial separation or otherwise, the offense of rape is penalized. 

According to 42nd Law Commission Report, the Indian criminal jurisprudence assumes that living together raises a presumption that the wife has consented to sexual intercourse by the husband, however after separation, the institution of marriage subsists wherefore penalization of rape is valid. According to this rationale, there is a higher threshold on whether the couple is living together or not to adjudge the committal of rape. To this, there was a suitable argument placed that when other instances of violence by a husband towards his wife is criminalized then there is justification for rape in marriage to be alone shielded from the operation of criminal law.

The 172nd Law Commission rejected this argument and said that there is a fear that criminalization of marital rape would lead to excessive interference with the institution of marriage. Wherefore, rape in India is a civil offense by virtue of the Protection of Women from Domestic Violence Act, 2005; in Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court said that rape is a crime against basic human rights and a violation of the victim’s right to life enshrined in Article 21 of the Constitution. Yet the judiciary negates this very pronouncement by not outright recognizing marital rape in manifold judgments. In one of the instances, former Chief Justice of India, Dipak Misra said to Deccan Herald that marital rape should not be made a crime 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.” 

In summation, subsistence of marriage is evaluated to be of greater significance than the violation of basic rights of a female living with her husband. Here, it is pertinent to note that when a law chooses to ignore a crime altogether to save a marriage, paradoxically the same disregard will eventually lead to the breakdown of marriage the law is trying hard to protect in the first place. Although there is legislation in relation to domestic violence in India but this has mainly been confined to physical rather than sexual abuse. Women coming forward to challenge sexual violence meted out by their husbands are currently denied State protection because of the marital rape exception under Section 375. Therefore, in present time, Indian laws are deficient in providing supporting mechanisms for women to exercise bodily integrity and sexual autonomy, more so when that woman is married, which is why it is important that we discuss why is it important to criminalize marital rape in India. 

Why criminalizing marital rape in India is important

Although marriage is considered to be a deeply personal matter of two individuals which the State is hesitant to disrupt by reason that the institution of marriage forms the bedrock of our society, the refusal of the State to enter this private space can be problematic because it leads to indoctrination of the widely held view that woman should bear the weight of the responsibility of her family’s image. On the other hand, it is also absurd that the legal system in India which aims to secure the rights of every individual of society ironically provides no legal redress if that individual is a wife seeking accountability from her husband for raping her. The wife is left in a dilemmatic position where she can neither take help from the State nor from her family. Thus, it is important for the State to penetrate this private sphere because when the gravity of the crime is as large as rape, it is moreover necessitated that the sacred institution of the couple’s marriage be brought into question on the ground that whether the marital affairs can be held sacred anymore when a repugnant crime like rape is committed.

Although, the Supreme Court in Independent Thought v. Union of India elucidated that if divorce and judicial separation have not destroyed the institution of marriage then anything other than the Indian State criminalizing marriage itself can’t destroy the institution of marriage and therefore criminalizing marital rape certainly can’t either. Interestingly, the High Court of Gujarat also ruled that the non-consensual act of marital rape violates the trust and confidence within a marriage and that marital rape is what has damaged the institution of marriage. Hence, the courts agree that criminalizing marital rape does not threaten marriages in any way. Thus, we will discuss the valid grounds on which this exception can be taken down.

Grounds to strike down the marital rape exception

Speaking of the grounds on which marital rape exception is unlawful; firstly, it violates principal articles guaranteed by the Constitution of India. Judiciary by far has expanded the scope of Article 21 of the Constitution by leaps and bounds which was also interpreted to cover the right to live with human dignity within its scope. Marital rape clearly violates the right to live with dignity of a woman and to that effect, that the marital rape exception provided under Section 375 of the IPC is violative of Article 21 of the Constitution. Further, Article 14 of the Constitution guarantees that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India by protecting a person from State discrimination, but it is noteworthy that the exception 2 under Section 375 of IPC discriminates the wife when it comes to protection from rape because there is no reasonable classification put forward by the Supreme Court to do so. 

Apart from several violations of the Constitution that Exception 2 in Section 375 of IPC creates, there are also ostensible lacunae in the Rape law. The Indian law prevents a girl below 18 years from marrying, but on the other hand, it legalizes non-consensual sexual intercourse with a wife who is of 15 years of age or between 15 to 18 years of age. The IPC considers that it is rape if the girl is below 16 years and not the wife of the man alleged even if she consents, but if she is a wife, not below 15 and does not consent, it is not rape. Another lacuna in place is that it is rape if there is a non-consensual intercourse with a wife who is aged between 12 and 15 years. However, the punishment may either be a fine or an imprisonment for a maximum term of 2 years or both, which is quite less in comparison to the punishment provided for rape outside the marriage. 

The law making bodies need to mull over these striking fallibilities and bring about an appropriate law in existence. This is because consequently the hegemonic idea of not touching the marital institution amplifies the regressive principle that denying sex goes against the paradigm of the duties of a wife and fails to recognize the fact that marital rape is an extreme form of sexual violence. It is a violation of the trust and sanctity in a relationship, and also including but not restricted to overlooking fundamental principles of women’s bodily integrity. The rationale also fails to address the structural inequalities inherent in the system of the structured society of present time and further indoctrinates the acceptability of sexual violence against women as normal. Although cruelty in the marriage is recognized as a ground for divorce but sexual torture within the marriage is not.

Legislators here seem to project the idea that seeking divorce from a sexually abusive man is a more comfortable option rather than penalizing him. The gender dimensions of marital violence are being overlooked and this position fails to recognize the fact that the rape within marriage implies patriarchal assertion of male power. It implies coercive demand for sex. The principle ignores the fact that letting go off a violent person will in no way alter his violent behavior and aggressive conduct or his sadistic attitude. Added to that, not punishing the crime will not deter the criminal behavior but rather validate it. Saying it in the words of Chief Justice Gita Mittal and C Hari Shankar of the Delhi High Court, “marriage does not mean that the woman is all time ready, willing and consenting for sex.”

Conclusion

In light of the aforementioned arguments and counter-arguments, it is put forward that it is high time marital rape be recognized by Parliament as an offence under IPC, the punishment of which should be the same as the one prescribed for rape committed other than in a marital institution. The fact that the parties are married should not make the sentence lighter because the gravity of the offense is equally grave; otherwise it is analogous to passing off the idea that if a woman consents to be married then she consents to be raped by her husband as well. To culminate, the marital rape exception has no relevance in present scenario.


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