This article has been written by Liza Arora.
Marital rape is serious and societal issue that we should have to concede as soon as possible so that no more such offence took place further. Any sexual intercourse between husband and wife without wife’s consent is called marital rape. the act of cohabitation against the will of wife is a heinous offence, and cannot be condoned just because the husband has been brought up in a society with a mindset that it is right of the husband to cohabit wherever and whenever he desires so. Wives are not the assets of their husbands but in our society, marriage in a way, gives men a ‘licence to rape’ with their wives. Marriage should not be seen as a permit for unconsented sexual intercourse everyone has a right on their body more than anyone else. Sex should only be done with the mutual consent, love, caring and clear communication.
The legislative development under rape law since the 18th century
The definition of rape is codified under section 375 of Indian Penal Code 1860 includes all forms of sexual assault involving non-consensual intercourse with a woman. However exception 2 to Section 375 Exempts unwilling sexual intercourse between a husband and a wife over 15 years of age. For thirty years, after the enactment of IPC’ 1860, Rape law remained the same. The later change was owing to a number of cases in Bengal in which the child wife died due to consummation of marriage. Out of these, the most notable was Queen Empress v. Haree Mohan Mythee. This case tells the pathetic story of phulmonee Dassee, who was eleven years and three months old when she died as a result of rape committed on her by her husband. The medical evidence showed that Phulmonee had died of bleeding caused by ruptured vagina.
In 1891, Sir Andrew Scoble introduced the Bill, which culminated into Indian Criminal Law (Amendment) Act’ 1891. This act raised the age of consent to 12 years both in cases of marital and extra-marital rapes. The object of Act was humanitarian, viz., “to protect female children from immature prostitution and from pre-mature cohabitation”. Pre-mature cohabitation resulted in immense suffering and sometimes even death to the girl and generally resulted in injury to her health and that of her progeny. In 1922, Rai Bahadur Bakshi Sohan Lal, MLA, introduce a Bill in the Assembly to amend section 375, Indian Penal Code, 1860 (IPC) by raising the age of consent in both marital and extra-marital cases. On September 1, 1925 Sir Alexender Muddiman introduce the amendment in 1925 for the first time introduced a distinction between marital and extra-marital rape cases by providing different age of consent in marital rape cases. The distinction was further emphasised in section 376 by incorporating the words – “unless the woman raped is his own wife and is not under twelve years of age”. In which case the punishment was diluted by prescribing a maximum of two years. Thus, the purpose aimed to be achieved by raising the age of consent to 13 years, stood mitigated to a large extent by the diluted punishment provided by amended section 376.
The question of age of consent was not considered as finally settled and Hari Singh Gaur again introduced a Bill in 1927 to raise the age to 14 and 16 years in marital and extra-marital cases respectively. It was followed by the appointment of Age of Consent Committee, which reviewed the prevailing situation and suggested few amendments.
The committee was of the opinion that the amended law was ineffective due to the nature of the offence, particularly in case of marriage as consummation necessarily involves privacy. The prevalent view among the awakened sections of society was that prohibiting the marriage of a girl under a particular age would be a better measure than to increase the age of consent for sexual intercourse. The dissenting group among these classes felt that law was partly futile because it Committee recommended the use of term ‘marital misbehaviour’ instead of rape in marital cases. The offence of marital misbehaviour would be committed by a husband in case of sexual intercourse with his wife below 15 years of age. The Committee recommended the inclusion of offence of marital misbehaviour in Chapter XX of IPC and section 375 and section 376 of the IPC should be confined to rape outside the marital relation.
The Committee also recommended maximum punishment of either description for 10 years and fine where the wife was below 12 years of age and imprisonment, which may extend upto one year or fine or both, where wife was between 12-15 years.
Present legal position
Under Indian law, exception to section 375, IPC embodies that when the woman is married and not less than fifteen years of age, sexual intercourse by the husband is not rape. Prior to the amendment in IPC in 2013, when the wife was between 12 – 15 years, the drastically reduced quantum of punishment was provided, which may have extended to two years or fine. It amounted to rape only when the wife was below 12 years of age. The amendment in 2013 has done away with this clause but at the same time has not recognized the concept of marital rape and has chosen to continue with the earlier legal approach. It would be pertinent to point out that Justice Verma Committee Report has recommended that marital rape exemption in the IPC should be withdrawn.
Thus, under Indian law, no effort has been made to give even a veneer of protection to the right of a married woman to her physical or sexual autonomy. In the existing scenario, there is hardly any feeble hope of future changes as far as recognition of marital rape of adult women is concerned and even in case of minor wives between 15 – 18 years of age, the offence is treated for less seriously. In 156th Law Commission Report, the Commission expressed its reluctance to raise the age for wife from 15 years to 18 years in the Exception to S-375 IPC, without assigning any reasons in particular. In 172nd Law Commission Report, the Commission found the deletion of the exception to Section 375 IPC, unnecessary as it may amount to excessive interference with the marital relationship. However, the Commission recommended that the age limit for the wife be raised to 16 years from the existing 15 years.
The Hon’ble Supreme court and various high courts are currently flooded with writ petitions challenging the constitutionality of exception 2 of section 375 Indian penal code 1860.
Recently, In the matter of ANUJA KAPUR VS. UNION OF INDIA, a PIL was filed by the petitioner before High court of Delhi to frame necessary guidelines or appropriate laws or bye laws related to marital rape as ground of divorce and fix the appropriate punishment /penalties for violation of the above framed guidelines and laws .
It was held by the Hon’ble High court of Delhi that as it appears to the court that the main prayers are about drafting of the guidelines, appropriate laws and bye-laws relating to the marital rape so drafting of law is the function of legislature and not of the court. Court is more concerned with the interpretation of law rather than drafting of laws. This is the function of the legislature to be performed. We should not give any direction to draft the laws or bye-laws or to fix the appropriate, punishments penality.
Another PIL which is still pending before High court of Delhi has generated a judicial debate on the constitutionality of exception 2 to section 375, IPC – the marital rape exemption clause. A division bench of acting Chief Justice Gita Mittal and C. Hari Shankar J hearing the PIL against the penal code provision noted that “marital rape is a serious issue, which has notoriously become a part of the culture.”
The RTI Foundation has filed the PIL in 2015 and other individuals and institutions have also approached the High Court of Delhi challenging the exemption under section 375 as well as section 376B IPC on the ground that it excludes marital rape as a criminal offence. It has been argued in the
PIL that the exemption is unconstitutional and violates the right of married women under articles 14, 15, 19 and 21 of the Constitution. One of the petitioners has challenged the provisions of Cr PC, which are to be read with section 376 IPC on the ground that differential procedure as well as differential punishment is prescribed, which is arbitrary and unconstitutional.
Violation of article 14
Article 14 of the Indian constitution ensures that state shall not deny to any person equality before laws with in the territory of India although the constitution guarantees equality to all. Indian criminal law discriminates against female victims who have been raped by their own husbands.
At the time the IPC drafted in the 1860s a married women was not considered an independent legal entity .rather she was considered to be the chattel of their husband .
As a result, she didn’t possess many of the rights now guaranteed to her as an independent legal entity including the right to file a complaint against another under her own identity.
Exception2 distinction between married an unmarried women also violates article 14 insofar as the classification created has no rationale to the underlying purpose of the statute.
In Budhan Choudary vs State of Bihar and State of West Bengal vs Anwar Ali Sarkar the supreme court held that any classification under article 14 of Indian constitution is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective that the act seeks to achieve but exception 2 frustrates the purpose of section 375 to protect women and punish those who engage in the inhumane activity of rape. Exempting husbands from punishment is entirely contradictory to that objective put simply the consequences of rape are same whether a women is married or unmarried moreover, a married women may actually find it more difficult escape abusive conditions at home because they are legally and financially tied to their husbands.
In reality, exception 2 encourages husbands to force fully enter into sexual intercourse with their wives, as they know that their acts are not discouraged or penalized by law because no rationale nexus can be deciphered between the classification created by the exception and underlying objective of the act it doesn’t satisfy the test of reasonable and thus violates article 14 of the Indian constitution .
Violation of Article 21
Exception 2 is also violation of article 21 of the Indian constitution Article 21 states that no person shall be denied of life and person shall be denied of life and personal liberty except according to the procedure established by law.
In recent years ,court have begun to acknowledge a right to abstain from sexual inter course and to be free from unwanted sexual activity enshrined under these broder rights to life and personal liberty in the State of Karnataka vs Krishnappa the Supreme court held that non –consensual sexual intercourse amounts to physical and sexual violence later in case of Suchita Srivastava and Anr vs Chandigarh Administration 2009 (a) scc 1, supreme court held in para 22 of the judgement “had recognized a women’s right to male her reproductive choices as a dimension of personal liberty as understood under article 21 of the constitution of india it is important to recognised that reproductive choices can be excercised to procreated as well as to abstain from procreating the crucial consideration is that a women’s right to privacy dignity and bodily integrity should be respected forced sexsual cohabitation is a violation of the fundamental rights the above rulings do not distinguish between the rights of married women and unmarried women and there is no contrary ruling stating that the individual right to a privacy is lost by marital association.
The latest judgment by Gujrat High Court in Nimeshbhai Bharat bhai Desai vs. State of Gujrat termed marital rape as a disgraceful offence and elaborately dealt with the issue of Marital rape stating that “ making wife rape illegal or an offence will remove destructive attitudes that promote the marital rape is recognized as court held that the husband is liable only for outraging her modesty and unnatural sex.
Similarly, Hon’ble Supreme Court in the matter of Independent Thought Vs. Union of India and Anr,2 017, 10 SCC, 800 has criminalized sexual intercourse with the minor wife aged between 15 to 18 years but has refrained for making any declaration regarding marital rape of a woman who is above 18 years of age.
The Hon’ble Supreme Court in the case of State of Maharashtra Vs. Madhukar Narayan Mandikar had referred to the right to privacy over One’s body. In this case, it was decided that a prostitute had a right to refuse sexual intercourse what is said to know is that all stranger Rapes have been criminalized and all the females, other than wives – have been given right to privacy over their bodies thereby envisaging the right to withhold consent and refuse sexual intercourse.
 S. 375, The Indian Penal Code, 1860.
 S. 375 exception 2, The Indian Penal Code, 1860.
 Queen Empress v. Haree Mohan Mythee, 1891 Cal 49
 Act No. X of 1891, published in Gazette of India, (1891), Pt.V.
 Report of the Age of Consent Committee, Calcutta, Government of India, 11 (1928-29).
 Supra note 5 at 17,18
 Supra note 5 at 124 ,125
 The Criminal Law (Amendment) Act no. 13 of 2013.
 Justice Verma Committee Report, (2013).
 Law Commission of India – 156th Report on The Indian Penal Code, Ministry of Law and Justice, Government of India,161 (August, 1997). The NCW had recommended that the age limit in the Exception to S-375, IPC be raised from 15 years to 18 years.
 Law Commission of India – 172nd Report on Review of Rape Laws, Ministry of Law and Justice, Government of India, (2000), para 126.96.36.199.
 DLT, 7256, 2019
 Delhi High Court to Hear NGO’s Plea Opposing Marital Rape”, Indian Express 28, 2017
 Budhan v.State of Bihar, AIR (1955) SC 191(India).
 State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75(India)
 The State of Karnatka v. Krishnappa, (2000) 4 SCC 75 (India).
 (2008)14 SCR 989(India)
 2018 SCC Guj,732
 2 017, 10 SCC, 800
 AIR, 1991,SC, 207
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