This article is written by Rahul Kanoujia of Gujarat National Law University and updated by Aieshwaryaa N and Akshayan K S, from Sastra, deemed to be University, Thanjavur, and Ayesha Khan.

Abstract

India is a country with diverse culture and values it in its dimension. Marriage is one important ingredient that shows how our culture is structured. Marriage is a bond between two individuals which eventually give them legitimacy for sexual intercourse. Here arises a question that, whether the implied consent, given at the time of entering into that “contractual bond relationship” means the consent for everything that extends till the whole period of life or has any limit when viewed in the aspect of women. To answer this, the paper has discussed the usage of women without their consent. The paper also chalks about Section 375 of IPC and constitutional validity of the Section. India is one of those countries which updates itself and brings new laws for the development of the nation towards betterment. To achieve betterment we need to review what we are doing and what should be done. For this, the authors have proffered a comparative analysis between other country’s laws and our laws. Law Commission Report and the arguments towards Marital Rape substantiates that there is a need for something which we are silent about. Thus, wedlock is a bond between individuals where they have their own space and make marriage very beautiful by more love rather than force.

Introduction

Marriage is nothing but a contract between two parties that legalizes sexual intercourse. A marriage can be called a sacramental or a contractual relationship. As the meaning itself says marriage legalizes sexual intercourse it is meant that any sexual act in the course of the marriage is not wrong and is legal. This forms the reason for the people to engage in the act of committing marital rape. Marital rape is nothing but sexual intercourse between married couples without the wife’s consent. This clearly tells that the husbands use the ceremony of marriage as a hook to acquire a license to sexually assault his wife and further proclaims it to be his own right as a husband.

Article 14 of the constitution talks about equality but in the case of marital rape, it does not give equal rights for her sexual desire. Generally, when a man has sexual intercourse with a woman without her consent it is considered to be rape and it is termed as a criminal offence. The word consent is one of the important key factors to decide whether it is a rape or as sexual intercourse. In this way, there stands a question mark of how can rape by husband after marriage but without the consent cannot be a crime. Ironically, India gives more importance to rape where frequent laws are made and updated with regard to it and many measures are also taken by the government to stop rape but on the other hand, the act of marital rape still did not receive the criminal attention that is, it ought to receive and it remains unnoticed.

Even after the Delhi gang-rape case, the Verma committee suggested that marital rape should be included as a crime under Section 375 of the Indian Penal Code. Many NGOs and organizations and researches proved that women in India are suffering from marital rape but the government delays itself in showing concern concerning this issue. Though much concern is not given to marital rape several pieces of research works have classified this unnoticed crime as battering rape, force only rape, compulsive or obsessive rape.

Historical perspective

Historically a rape is considered as a crime but this is not the case with marital rape. This is because a woman is considered as the property of a man. A man can rape a lady for ‘n’ number of times without having her consent because it’s not considered as a criminal offense and he’s not punished for that, if he is married to that woman. And society feels that a person has legal right for raping his wife. This can be traced from the statements made by Sir Mathew Hale, chief justice in 17th century England. He stated that:

“The husband can’t be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract upon his lawful wife hath given up herself this type unto her husband which she cannot retract”.

This is because of patriarchal society, traditional views of marriage and the domination of men led to the violation of individual rights of women. But these views of marriage and sexuality were challenged in most western countries from the 1960s and 70s especially by the second wave of feminism. This led to the identification and acknowledgement of a woman’s individual rights.

International scenario

Most countries began to criminalize marital rape from the late 20th century. Countries like Albania, Algeria, Australia, Belgium, Canada, China, Denmark, France, Germany, Hong Kong, Ireland, Italy, Japan, Mauritania, New Zealand, Norway, Philippines, Scotland, South Africa, Sweden, Taiwan, Tunisia, The United Kingdom, US, Indonesia, Turkey, Mauritius and Thailand criminalized marital rape. These countries have enacted and declared marital rape as an offence. But in India, it is not an offence.

Indian scenario

Section 375 of IPC deals with rape. In this section, there’s an exception that a person can have sexual activity together with his wife, without her consent, if she isn’t under the age of eighteen. Initially, the age of consent was fifteen but it was raised to eighteen by the Supreme Court of India in the judgement of Independent Thought vs. Union of India in 2017. In this context, a bench of justices Madan B Lokur and Deepak Gupta observed: “Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance”. However, the Supreme Court refrained from dealing with marital rape aged above eighteen.

Interpretation of Section 375 of Indian Penal Code

Section 375 – Rape

“A man is said to commit “rape” if he:

1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or
2.  inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman, or makes her do so with him or any other person; or
3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any of the body of such woman or makes her do so with him or any other person; or
4. applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person, 

Under the circumstances falling under any of the following seven descriptions:— 

First – Against her will. 

Secondly – Without her consent

Thirdly—with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly – with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly – With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly – with or without her consent, when she is under eighteen years of age.

Seventhly – when she is unable to communicate consent.

Explanation 1: For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2: Consent means 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:

Provided that a woman who does not physically resist the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1 – A medical procedure or intervention shall not constitute rape.

Exception 2 – Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.

Under section 375 of the Indian Penal Code, the definition of rape is when a man without the person’s consent or will has sexual intercourse. Section 375 explains what rape is and when an act becomes rape. It also provides for 2 exceptions one of which is a medical procedure and the other one is sexual intercourse of a husband with his wife who is not 15 years or below is not considered as rape. But if the wife is above the age of 18 and the husband has sexual intercourse without her consent is not constituted as rape. Section 375 considers only the rape of a minor girl a crime. The law stands biased and does not give equal protection to all women. The point to be noted is we all think section 375 does not address marital rape but the point of fact is that the second exception tells “sexual intercourse by a man with his wife” which means they are legally married. Hence section 375 addresses marital rape but with its limitation of age. This interpretation means that if a woman is above the age of 18 and if she is married then the husband gets a license to have sexual intercourse without her consent. If against the will and without the consent is 2 important features of rape then whenever it happens by any men before or after marriage is rape.

Constitutional validity

The rape laws in our country which do not include marital rape are felt to be violating Article 14 and 21 of the constitution. 

Violation of Article 14

Article 14 which states equality before the law and equal protection of law does not give equal protection to all women in this scenario. The Indian penal code, when drafted in the 1860s, did not accept a married woman as an independent legal entity and was always stated as an entity within the husband’s possession. In proving this the exception 2 of Section 375 does not punish the husband for the act of rape with his wife but punishes the husbands when they have sexual intercourse with their wives who are at the age of 15 or below. Thus the law clearly discriminates between married women above the age of 15 and below the age of 15. Exception 2, by not giving punishment encourages doing any sexual act if they are a major and married. Thus, Article 14 of the Constitution is violated. 

Violation of Article 21 

Exception 2 of section 375 violates Article 21 of the Indian constitution. Article 21 of the constitution provides for the right to life and personal liberty. It also includes the right to privacy, dignity, health, safe environment, etc. The supreme court also in many of its judgments like Suchita Srivastava v. Chandigarh Administration where it was stated that the right to make choices in sexual activity is also included under the right to personal liberty which is a part of Article 21. Also in the case of K.S. Puttuswamy v. Union of India the Supreme Court recognized the right to privacy as the fundamental right. Thus any forced sexual desire does violate their privacy which is their fundamental right. Hence exception 2 not only violates the right to privacy but also the right to live a healthy and dignified life. The forced sexual intercourse by their husband spoils the wife’s physical and mental health. The law thus violates Articles 14 and 21 of the constitution.

Is the wife a property to be used without consent?

Rape is the only crime where the victim turns to be accused. As defined under the Indian Penal Code, a man is said to commit rape if he has any sexual intercourse with a woman against her consent or with a consent obtained by fraud, misrepresentation, or coercion. There rises a question that whether a person who is married has sexual intercourse with his wife falls under the definition of rape? Two possibilities arise, among which one option known by all is “No”, and the other possibility is “Yes” if it is done without her consent. The possibility “Yes” has more arguments against it when compared to the possibility “No”. As everyone is aware of the ceremony of marriage, it has its traces in all ages of the world. In fact, the world has gone through the phase of such a transition with the practice of marriage as its base. Since the past, women were considered to be the weaker sex and are denied from all rights. After various struggles, women were also considered equal to men in all aspects, but the culture that began in the past still holds the position of women in a weaker position. The past world considered women only for the procreation of child and maintenance of family but now they are provided with a birthright of participating in all fields. No woman can be denied any benefits because she is a woman and meanwhile no men can be granted with all rights over everything he acquires because he is a man. Then how can sexual intercourse with the wife without her consent not invite the term rape?

As well said, “My rapist doesn’t even know he raped me, because the system told him he didn’t”. Society, still believing in the system, fails to believe in the personal feelings of women. Though marriage is a contractual relationship as defined the parties to contract are bound with certain rules. That certain rule has no right to violate or contradict other provisions of law. The Indian constitution has its arm wide open for all citizens of India irrespective of their gender, caste, race, etc. It guarantees the Fundamental Rights to all its citizens by birth. According to Article 21 of the constitution, every citizen is enabled to a right to life and personal liberty which also includes human dignity. Personal liberty stands for any legal wish, thus any decision of having sexual intercourse not only lies with the husband but also in the hands of the wife. The exception to section 375 of IPC deals with acts that do not invite the term rape. Under such an exception, it is stated that any medical test or any sexual intercourse by the husband does not constitute to be rape unless the wife is under the age of 15. 

But it failed to mention the consent of parties. Though the consent for the medical test is not explicitly mentioned in IPC any act done by the medical practitioners without the consent of the patient will invite them into crime. Only if the patient is in a state of unconsciousness or unable to give consent, the consent given by a guardian (husband, for married women, parents for unmarried daughter) is valid. But there is no law or statute that expresses the consent of women as a must. The only difference between rape and marital rape is that the person involved in performing such an act.

But both concepts have the common root “consent”. If consent by the woman is denied no person has a right to force another gender or person to fulfil their personal wish by violating other rights. It does not mean that a woman is given the ultimate power to make a decision in all matters rather it explains that the suggestions and wishes of the woman must also be considered similar to that of a man and valid permission is required to engage in contact with a woman. Since marriage lies to be a contractual relationship for the purpose of creating a family and procreation of a child every act to be performed jointly needs consent from both the parties for that contract to sustain its validity. Similarly, a wife has the right to say “no” for sexual intercourse similar to that of a man. Thus it clearly explains that a woman is another equal half of a man and does not come under the term of property acquired by men through the religious ceremony so-called marriage. 

The Indian government passed an Act called the Protection of Women from Domestic Violence Act, 2005. This Act is passed for the reason to protect any women who are affected in their domestic life. As discussed above, having sexual intercourse without consent can be stated as a violation of dignity and thus can be considered as a criminal offence. The Act considering this violation as a civil offence has provided with few civil remedies such as fine, protection, etc. Though it may be before marriage or after marriage, sexual intercourse without the willful consent of men or women is rape. Any tree with a poisoned root provides a poisoned fruit similarly, a rape either before or after marriage is termed to be rape. A poisoned fruit covered with attractive appearance can no way be equal to a healthy fruit; thus any activity that rises to be offensive for either party can no way be covered with a blanket called the marriage in order to escape from criminal liability. According to the remedies mentioned in the domestic violence act, how can a civil remedy be matched with activity having its base to be criminal? 

Arguments for and against marital rape

Arguments for marital rape

• Not criminalizing marital rape becomes contrary to the other laws of India. Outraging the modesty of a woman or doing any act against her will or consent are crimes in India. In the same way, marital rape is also something without her consent but is not a crime. 
• Violates the fundamental right of Article 14 which is right to equality and equal protection of law and Article 21 Right to life and personal liberty.
• Society travels in the wrong assumption that if a woman is married then she is sexually obligated to her partner always. 
• Medically when a wife does not have a desire to have sexual intercourse but goes through the process it affects both her physical and mental health that again violates her fundamental right to live in a healthier way. 
• Since it is not recognized as a crime there are only countable cases of marital rape which is recorded only when we recognize it as a crime we will able to know the exact occurrence of it. 

Arguments against marital rape

• The term marital rape is itself very insignificant because the marriage itself means that both parties agree upon a mutual contract of sexual intercourse exclusively.
• There is no need to give any legality to marital rape as it is an uncommon issue and only countable people suffer out of this.
• This is a problem where the proof cannot be submitted very authentically due to which it becomes unfeasible to conclude whether it is rape or mutual intercourse.
• For any personal reasons like anger, the wife may charge the innocent husband with such an offence paving way to gender advantage.
• It becomes a burden to the court as it gets clumsy as this can neither be proved accurately nor dismissed out rightly.

Laws and measures in other countries

The UN recognized that the act of violence against women stands as an obstacle in achieving the status of development. Thus, the United Nations in its 48/104 resolution of 20 December 1993 proclaimed by The General Assembly made a declaration on the “Elimination of Violence against Women” mentioned some rules against the violence against women including marital rape. Article 1 states that any act that results in the physical, sexual, or psychological harm that takes place either in a public place or in a private life comes under the term violence against women. Sexual torture in private life may also involve the husband as a major source and highlights the term marital rape when it is done in the absence of consent. Article 2(a) explicitly mentions marital rape as violence against women along with other offences. By these provisions, the UN suggests all its members criminalize the offences which intend to violate the women’s dignity. Apart from its entire provisions, Article 6 gives clarity that this declaration would not affect any provisions of the state which already participates in eradicating violence against women.

Australian laws

Australia is one of the first western jurisdictions that made its first step in criminalizing the act of rape after marriage. Australian government defines the term rape in a different manner, which is not similar to India. Under Section 48 of the Criminal Law Consolidation Act 1935, the term consent is placed in a leading position which indirectly expresses the need for consent as a must before all requisites for an activity to be termed as rape as mentioned in India. The same way the Act did not have any provision related to rape committed by the husband, which implies the marital rape to be a criminal offence. Similarly under Division 14 of the same Act Section 73(3) states explicitly that marriage does not pave the way for sexual intercourse at the desire of any one party. It states as “No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person.” This statement involves consent as a must for any sexual intercourse and declares marital rape to be an offence indirectly and grants a punishment of life imprisonment under Section 48(1). Along with the above provision the government also grants the same punishment for the offenders who compel the other party to have sexual intercourse. All these provisions are applicable to both men and women under equality. 

Laws in Nepal

The National Civil (Code) Act 2017 also deals with the ground for divorce among all other rules. Section 95 of chapter 3 deals with the right of a wife to claim a divorce. Under the same Act section 95(f) states that when a husband forces his wife and commits rape it turns out to be an offence. Under section 104 this Act grants a time limit to file a lawsuit before the court as 3 months from the date of cause of action. Apart from the civil code the Nepal government in its Criminal Code Bill, 2014 granted punishment as 5-year imprisonment under Section 219(4) of the same Act. It also clarified the doubt of the difference between punishments for rape and marital rape and thus granted equal punishment to both offences in order to avoid the blanket of marriage over rape.

Criminalizing marital rape- A daydream in India

The situation in India

India as discussed earlier is known for its culture and heritage. When the path travelled by India is visualized it maintained its cultural practices and passed over the same passion to the next generation. This same ideology makes India take its step in criminalizing the act of marital rape. The government still stands in a stage of confusion of what to accept as evidence of proof when a case of marital rape appears before the court and whether such criminalizing the act would create another problem such as harassment of men, etc. Social thinkers suggest that the act of criminalizing marital rape would destabilize the system of marriage.

Apart from all these situations even now the law against marital rape is sustaining its presence as an unwritten law. In order to maintain such a situation, the courts in India clarify the doubt in the rights of married couples by passing an order of “right to say no for sexual intercourse”. This when viewed on either side affects the other party. This, when violated, becomes a crime and the punishment for such crime is still in progress. When the same situation is viewed in another aspect it may turn against men as harassment. Criminalizing such an act must not guarantee safety to one gender by grabbing it from another. Thus it is clear from the above that marital rape is still not criminalized in India, but the process is in its development stage. This does not mean that marital rape is not a criminal offence; it just survives as a rule which is not yet codified.

Steps by Law Commission on marital rape

The 42nd Law Commission report was the 1st report to address the issue. The report made two suggestions regarding marital rape. The first suggestion was that in any case when the husband and wife are judicially separated the exception clause must not apply. Although this was a good suggestion the reason given for giving such a suggestion was not proper. It was stated that as the husband is supportive of his wife having sexual intercourse without her will or consent won’t amount to rape. Such an explanation is not correct. The first suggestion tries to lay its emphasis that consent is required only when the married couple lives separately and not when they are together.

The second suggestion mentioned in the report is about the non-consensual sexual intercourse between women aged 12 and 15. It mentioned that the punishment for this offence should be stated separately and not with the term rape. In brief, this report places its emphasis on the word consent and the report wants to differentiate between marital rape and rape. Though the differentiation on marital rape and rape is not taken as a serious issue the concept of consent is viewed as a serious one. This report does not comment on the exception clause of Section 375. The 172nd law commission report directly addresses the validity of the exceptional clause. This report argued for the validity of the exceptional clause. It is stated that when in other instances violence of a husband towards his wife is a crime then why not rape? The law commission rejected such arguments in the view that it will lead to ‘excessive interference with the issue of marriage’. Even the 167th report of the Parliamentary Committee on home affairs states that the institution of the family will resolve and take care of its problems. Thus, marital rape goes through multiple prospective discussions.

Conclusion

The Indian Government in order to protect women enacted/amended many laws as time passed. But it slows itself in enacting the laws against the horrible crime against the women by their own husband’s known as marital rape. India till the present era holds its position at the top in protecting and practising its culture. Though the Indian culture holds the position of a married woman under their husband’s will, on the other hand, the same said Indian culture also gives its voice in respecting the dignity of women and their consent in all necessary issues which involve them. Marriage not only involves men but also includes women on the other side to balance the religious ceremony “Marriage”. Thus, we can conclude that India recognizes marital rape as a crime but it refuses itself to enact a proper law and to codify the crime.

References

• Marital Rape: A Non-Criminalized in India https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/#_ftn14

• Krina Patel, Fordham International Law Journal, Volume 42, Issue 5 2019 Article 7, The Gap in Marital Rape Law in India: Advocating for Criminalization and Social Change. https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2760&context=ilj

• Saurabh Mishra & Sarvesh Singh,  (2003) PL WebJour 12, Marital Rape — Myth, Reality and Need for Criminalization http://www.ebc-india.com/lawyer/articles/645.htm?people&next

• https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.21_declaration%20elimination%20vaw.pdf

• https://link.springer.com/article/10.1007/s10691-018-9382-3 LisaFeatherstone & Alexander George Winn 

• ttps://thehimalayantimes.com/kathmandu/new-law-sets-five-year-jail-term-marital-rape/ Published: October 30, 2017 5:15 am On: Kathmandu

• https://www.outlookindia.com/website/story/criminalising-marital-rape-will-destabilise-institution-of-marriage-government-t/300948

• https://qrius.com/married-partners-can-say-no-to-physical-relations-observes-delhi-high-court/ By PRARTHANA MITR

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