This article is written by Vaishali Jeswani, a student from HNLU. In this article, the author has discussed about one of the greatest evil prevalent in the Indian society i.e. Marital Rape and the legal provisions in the relating to the same.

Introduction

Rape is a crime against a woman, her dignity and her self-esteem. It takes place when a man against the will of the woman or without her consent forces himself upon her. The Supreme Court of India has described it as gravest crime against humanity and a deathless shame. Rape cannot be confined as mere physical assault but is destructive of the whole persona of the victim and when it occurs under the four walls of the Matrimonial home, it becomes more destructive for the Woman who has been subjected to such atrocity. With the society’s notion of ‘patiwrata‘, seven lifetimes together and treating marriage as a sacrament, The women often continue to suffer the heinous crime like getting raped by their very own Husbands and even if the women decides to speak up against it, her efforts go futile because of lack of effective provisions under the Indian Legal System.

In the landmark case of The Chairman, Railway Board v. Chandrima Das, Hon’ble Court held that Rape is a crime of such nature that it not only affects the ordinary right of an individual but also the fundamental right which is entitled to every individual by the Indian Constitution.

When we look into History, Women were treated as the property of males. First, the property of her father and later the property of her husband. The rape of a woman was considered to be a crime against the father or the husband, No rights were given to the females. The male dominance in this regard has continued to exist since time immemorial. Society has always taught a woman that she needs to live with her husband, treat him like her god, worship him, and support him in whatever he does. Treating any human being, be it a girl or a boy as a property of somebody else is a violation of their Identity and dignity. Thus, while not upholding the criminal status of marital rape, the courts have yet again designated woman so as to be property of Man who have Power over her.

After several decades of harsh treatment against women’s, When the matter reached the court, marital rape was denied criminal status based on the consent of the wife to the marriage. But the requirement of Section 375 of IPC is both consent and will. The absence of will remains there. Explanation 2 appended to Section 375 of the Indian Penal Code defines consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act”.

 It has rightly been stated in State of U.P. v. Chhoteylal that, “No lexicographer recognizes “consent” as a synonym of willingness, and it is apparent that they are not synonymous.” It may happen that a woman agrees and gives consent for sexual intercourse without her will for the same. It may also happen that there would be will but no consent, But where the law requires both the elements to be present, How do you justify the Act? The difference between Consent and will was approved in this case, and they were held not to be synonymous. Thus, Consent is required before every sexual intercourse and while it is happening, because consent is active and ongoing. Allowing non-consensual intercourse inside a marriage is a blatant violation of a woman’s right to her body and her dignity.

Even now, when women have been given various rights to protect themselves in the society and they stand on an equal footing as compared to men; they continue to face the heinous crime of rape, harassment at workplace, molestation, cruelty etc. while our judiciary deals with almost all of them, Marital Rape stands excluded from the crime category. While the woman’s rights activist has succeeded in persuading the lawmakers to bring laws to protect woman, there is still  a lot of hue and cry when it comes to marital rape.

Statutory Provisions

Rape clause in Indian Penal Code, 1860

Section 375 of the Indian Penal Code, 1860 describes Rape, It has a very narrow definition to it and does not cover marital rape under it. The exception to Section 375 says that If sexual intercourse is done by a man with his wife, it would not be considered as rape if the wife is above the age of 15, However in the case of Independent Thought vs. Union of India, The court said that a woman between the age of 15-18 can approach the court under section 375 in case of Marital rape; Much to the surprise and contradictory to much of sense, As soon as the woman crosses the age of 18, she cannot approach the court for the same. Thus, Marital Rape is not considered to be a crime under IPC. Section 376 prescribes the punishment for the offence of rape.

Provision under the Protection of Women from Domestic Violence Act, 2005

The option for her is to take recourse to the Protection of Women from Domestic Violence Act, 2005,  wherein the laws are not as strict as they are required to be in regards to rape. It treats marital rape as local violence and allows the wife to take divorce after counselling. In many countries around the World, Marital rape has been quoted as a criminal offence. Unfortunately, In India, it is not so. The women’s rights activist around the globe have condemned the offence of marital rape and have continuously requested to make it a crime punishable under the Law.  

Constitution of India

Article 14 of the Indian constitution guarantees the Fundamental Right of Equality to every citizen living in the Country irrespective of his race, religion, caste, sex or place of birth. The Constitution is the supreme law of the country, then how can a  discriminatory provision exist in regards to a married and an unmarried woman? When an Unmarried woman gets raped punishment exists for such an act, however, if a woman is married and is raped by her husband those protectionary rights are denied. Existing provisions discriminate between the two sets of women which is not a reasonable classification as our Constitution only permits reasonable restrictions and stated provisions are prima facie unreasonable.

The Court has Denied Marital Rape the status of a crime. Sometimes based on Societal norms and at others based on Consent. Marriage based on consent cannot be a ground for making Involuntary sexual intercourse to be legal. The Law discriminates upon the basis of the relationship existing between the parties, but the relationship status is immaterial, Section 375 of IPC mentions that there shall be will and consent of the woman every time, and even if the law decides to treat marriage as consent even then where’s the will for the same? The absence of will still makes it an offence punishable under the law, even if the courts decide to treat marriage as consent for sexual intercourse, which again in the first place was very unreasonable.

Will means to want or to choose. If you have free will you be allowed to choose what you want? If you force someone to do something, you’re imposing your will upon them as opposed to their will. Here, When the woman is forced into the act of sexual intercourse against her will, it amounts to Crime as the woman’s desire is absent. Will is an essential requirement for lawful sexual intercourse to take place, and the absence of same in case of forced marital sexual intercourse amounts to Rape. 

Rape stands the same, whether the woman is married or not. Protecting the dignity of women by making Rape a crime would in no way harm the justice, equity and good conscience of the Society as has been the stand of the court at times. The discrimination based on marital status is unjust, and the statutory provisions in the laws oppose this practice too; despite that it still exists.

Article 21 of the Constitution guarantees the fundamental right to life. Time and again the Courts have said that the right to life includes not merely the right to breathe but to live with dignity. When a woman is Raped she not only suffers physical harm but mental agony as well, Her dignity is hurt. 

In the case of State of Karnataka vs. Krishnappa, the court defined ‘how sexual intercourse is a crime against humanity. It is unlawful intervention in a person’s right to privacy and harms the sanctity of the woman. The act humiliates her dignity & her self-esteem, she loses her confidence and lives a life of misery’. The right of privacy, dignity and life guaranteed to women are taken away by the husband because he has full control over her body and he stands protected by the Law.

Further, Article 21 of the Constitution includes in itself the Right to Life and personal liberty, Right to live with human dignity, Right to sexual Privacy, Right to Bodily self-determination and Right to good health; All of these rights are a woman’s fundamental rights, and are violated when Marital rape takes place.

Judicial Pronouncements

In Mahmood Farooqui v. State of NCT of Delhi, The parties were involved in sexual activity, when the man has forced himself upon the woman physically; the woman fearing injuries did not deny consent and allowed herself to be taken. The court assumed her consent suggesting that in some circumstances, “a feeble no may mean a yes” especially “when parties are known to each other, … and if, in the past, there have been physical contacts”. The court took the presumption of her consent on the basis of her not resisting to the act for the fear of Injuries’.

In the case of Queen Empress vs. Hurree Mohun Mythee Meld, marital rape took place with a girl aged 10 years, here the provisions of rape laws could not be applied because of Age of the girl. The court said that no hard and fast rule can apply in such situations. The circumstances need to be taken into consideration and also the way in which the man behaved, causing injuries to the victim & forcing himself upon her; whether or not he has brought himself under the Criminal law provisions. The court was right in its saying, Nobody shall be allowed to commit a crime just because there exist no law against it.

The Supreme Court in the case of State of Maharashtra vs Madhukar Narayan, the Court said that a prostitute has the Right to say ‘NO’, She is equally entitled to the protection of laws as any other woman would be under the same circumstances. It doesn’t matter if she is of ‘easy virtue’ she haves all the right to deny sexual intercourse. And her evidence too would be admissible. 

It seems like every woman be it a prostitute, a girl child, a minor is protected by our law but not a married woman. If the law is the same for everyone then why deny the rights to a married woman because of her marital status? 

In the case of Sree Kumar vs. Pearly Karun, there was an ongoing dispute on the divorce between the husband and wife, subsequently, they decided to reside together. The wife stayed with the husband for two days and alleged him of sexual intercourse with her against her will and consent. Hence the husband was held not guilty of raping his wife.  The Kerala High Court observed that because the wife was not living separately from her husband under a decree of separation or any custom or usage, even if she is subject to sexual intercourse by her husband against her will and without her consent, an offence under Section 376A, IPC will not be attracted.

It isn’t hard to notice the mental trauma through which a rape victim undergoes. Consider a grotesque situation where the woman is raped by someone known, somebody from the family and then she has to reside with that person every day. Rape is a grave offence and by not making it a crime the courts have given a license to the male society to overpower the woman. With our orthodox society, A woman already finds it hard to speak about such offences and with the law not giving any support to them it becomes a more miserable situation. It is sad how the judiciary and the legislature have failed to recognize the fundamental rights of a woman, The right to be treated equally, The right to live her life with dignity and The right to her own body.

In Emperor vs. Shahu Mehrab,  the husband while having sexual intercourse with his minor wife caused her several injuries, subsequently causing her death and thus was convicted under section 304A of the Indian Penal Code.

Suggestions and Recommendations

To protect the woman, her rights and dignity; The legislature primarily needs to remove the difference between marital rape and stranger rape. Living with a person who violates your rights and your dignity is no justice to anyone. In a country where the constitution is the supreme law, Its violation in any form cannot be neglected. Marital Rape is a crime not only against a woman but also a Man; It needs not only to be criminalized but also neutralized. A man can be subjected to rape too, and while we advocate equality in our country through the constitution, both man and woman should be treated on par when it comes to a crime of similar nature.  The decree of Divorce and other remedies should be provided to the parties, other than making marital rape a crime.

Further, Can the state enter the realm of the personal life of parties or home? the answer is ‘yes’ it definitely can. The law deals with domestic violence, cruelty, divorce and thousand other issues related to the internal life’s of people why not marital rape? Rape is a grave crime and it needs to be criminalized in all forms and aspects, Despite the woman’s age, her caste or the cultural rituals followed by them; the pain and the injuries sustained physically and mentally are more or less same. The courts have dealt with triple talaq, harassment at workplace, cruelty, divorce and domestic violence with utmost sincerity; It is time that we move forward and take an action against Marital Rape. The woman continues to be victimized by society, it is time that we recognize her rights and dignity, rather than denying her the rights and protection of Law because she is married and thereby, subjugating her to somebody else’s power over her.

Due to fake cases of Rape, the judiciary and the legislature fears the misuse of Rape laws. This being one of the major reasons why marital rape is denied criminal status. With effective measures and medical operations performed by our doctors; supported by reasonable tests by the courts, justice can be done. Denying protection of Law based on a few fake cases is an injustice to society at large. Only because of the ineffectiveness of our Laws and Techniques we cannot allow a heinous crime like unlawful sexual intercourse to prevail, that too inside a relationship which is considered so pure by our Society.

Conclusion

We Conclude that by not giving Criminal status to the offence of Marital Rape, The legislature and the Judiciary are subjugating the woman to immense pain and loss of self-dignity, Her faith in the Law has been stained. After being subjected to mental and physical agony by the husband, She has nobody to turn to, The society will not accept it and the judiciary will close its eyes because she is married. First, being subjected to the powers of males in her family to be treated as their property women in our country have faced a lot. In an era, where laws are considered supreme, denial of equality to any person is a grave injustice. Through various judicial pronouncements, the courts have condemned marital rape but have refrained from criminalizing it for various reasons, be it society or ineffectiveness of our Laws. With time, A lot of changes have taken place in society; Women’s are now independent, powerful, educated and employed. They should be respected and their dignity shall be protected. It is time that we remove all kinds of discrimination against women and treat them with kindness and respect their rights; Because a Society without a woman is dry and life less and cannot possibly exist.

References

1. Bodhisattva Gautam v. Subhra Chakraborty, AIR 1996 SC 922.

2. The Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988.

3. https://ohrh.law.ox.ac.uk/consent-in-indian-rape-law-a-case-for-an-objective-standard-of-determining-consent/.

4. State of U.P. v. Chhoteylal, (2011) 2 SCC 550. 

5.  Independent Thought vs. Union of India, (2017) 10 SCC 800.

6.  Protection of Women from Domestic Violence Act, 2005, Act of Parliament, 2005 (India).

7.  State of Karnataka v. Krishanappa, AIR 2000 SC 1470.

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: