This article is written by Ashok Sharma, pursuing a Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho, retired Lt. Col, a 1st year law student at St. Thomas College of Law, Greater Noida and edited by Shashwat Kaushik. The issue of criminalising marital rape in India is knotted in different strands of public opinion, societal traditions and archaic laws. An attempt has been made in this article to present a balanced perspective, taking into account the manifestations of change in western countries.
It has been published by Rachit Garg.
Table of Contents
The word ‘rape’ originates from the Latin word ‘rapere’, which is used to describe an act “to steal or carry off,” alluding to the prevalent behaviour of ancient Romans who stole their wives from other tribes. In the very nature of crimes against humanity, rape of women is embedded in the evolution of mankind and there are many references to the acts of spousal rape in ancient texts. This inhumane crime against women continues to this day and age across all nations, societies, religions, cultures and ethnicities.
Considered as a violation of human rights ‘rape’ is an act of forced sexual intercourse committed by a man (husband) on a woman (wife) against her consent or free will. To subjugate the defenceless victim, the rapist often resorts to violence, intimidation and the threat of dire consequences, forcing the victim to submit to the carnal desires of the perpetrator. Rape manifests in many forms, including gang rape, date rape, child rape, serial rape, marital rape, statutory rape, mass rape by conquering armies, incest, and many other pervasive forms of sexual assault on the dignity of women.
In ancient times, women in a patriarchal society like ours were treated as the property of their father and, after marriage, the property of their husband. An act of rape was considered damage to her father or husband and not to the dignity of the woman victim. The view that marriage itself gives consent to sexual intercourse and, on the other hand, the argument that forced sexual intercourse against free will or consent is rape, irrespective of the nature of the relationship between the man and woman, are the two conflicting schools of thought prevailing in our country.
Let us dive into the vexed issue of marital rape, its definition, history, legal status, prevalent laws in other countries and challenges in framing laws related to marital rape in Indian legal jurisprudence.
History and nature of marital rape
The earlier perception of the relationship between husband and wife hinged on the notion that men were superior to women. Being the sole earning members, men deserved more respect and authority in the family setup and women played second fiddle. Control over the woman’s body by her husband was treated as a marital right irrespective of her personal choices, likes, dislikes, desires or wishes. Abhorrent practises like ‘Sati’ in Rajasthan, where women jumped into the funeral pyres of their husbands, were prevalent to save the women’s honour from the invading armies. The sacrifice was glorified in folklore as an example of women’s chastity and fidelity.
As society evolved and women began to create their own space and excel in different walks of life, influenced by the winds of change blowing across the world, the voices in support of equal rights for women began to grow louder in the Indian social milieu. No longer a silent revolution, the issues around women’s independence, dignity, and right to autonomy over their bodies have acquired shrill and definitive voices being raised in Parliamentary debates, social media and by way of public interest litigations now under the radar of the Supreme Court of India.
The basic nature of rape remains the same in all forms of rape. For ease of identification and reference, different types of rape are associated with act-specific terminologies. Marital rape is not different from any other form of rape except that here the act of rape is committed upon an unwilling spouse by her husband. The basic element of power dynamics is evident in all forms of rape. In marital rape, there is a sense of entitlement by virtue of the relationship and there is no fear of any retaliatory or punitive action, especially in societies and countries where the law is silent on this issue, which is festering under multiple layers of turbulent marital relationships.
Definition of rape and related laws
India’s legal system inherited rape laws from British colonial era laws founded on Victorian principles. The offences against the body are described in Sections 299 to 376 in Chapter 16 of the Indian Penal Code, 1860. The act of rape is defined by Section 375 as an act committed by a man through the penetration of his penis, any object or any part of the body, or by manipulating any part of a woman’s body to perform vaginal, oral or anal sex with the woman or with another person. The act of performing oral-vaginal and oral-anal sex on a woman, either by a man or by making a woman engage in these acts with a man or another person, constitutes the offence of rape.
This section describes the following seven different scenarios to be considered in establishing an act of rape:
- If rape is committed against the will of the woman.
- If rape is committed against the consent of the woman.
- If consent is obtained by inducing fear in the woman.
- When a woman is deceived into believing that the rapist is her lawfully married husband.
- Consent obtained from women under intoxication and/or who are of unsound mind.
- Sex with or without consent of women under 16 years of age.
- When a woman is unable to communicate consent.
This section provides the following two explanations
Firstly, the term ‘vagina’ (the internal female reproductive organ) is considered inclusive of the outer parts of the female genital area.
Secondly, consent means the wholehearted willingness of the woman to participate in the sexual act as indicated or expressed by words, gestures or any form of verbal or non-verbal communication. A woman who does not physically resist the act of penetration will not be regarded as consenting to the sexual activity on the sole basis of non-resistance as this may happen due to fear of violence and torture.
This section has the following exceptions to the act of rape
- A medical procedure or intervention is not an act of rape.
- Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not considered an act of rape.
The provisions of the law established over a century and a half ago failed to acknowledge marital rape except by way of an indirect reference in the above-mentioned exceptions, where-in an act of sexual intercourse by a man with his wife under fifteen years of age is defined as rape sans the prefix ‘marital’. By way of interpretation, the same act committed upon an unwilling wife above the age of 15 is not an act of rape and therefore it is not cognisable under the law. In later parts of this article, we shall examine how the rationale of these provisions was challenged in the courts, paving the way for necessary amendments, yet the goal of defining marital rape and its punishment remains elusive.
The absence of a law on marital rape in India does not imply that adequate laws do not exist in the statute for sexual offences against women. Indian laws on dowry, divorce, spousal maintenance, child support, inheritance and sexual offences are very comprehensive and often viewed as pro-women in intent, letter and spirit.
Laws addressing sexual offences against women
Let’s take a bird’s-eye view of the current laws addressing sexual offences against women. For the sake of brevity, only the essential laws have been mentioned.
- Section 509 of the IPC: This section makes any act or action committed to insult a woman’s modesty punishable with a prison term of simple imprisonment of 3 years and payment of a mandatory fine. Intentional acts or actions committed through offensive gestures, words or sounds (cat calls, whistles, etc.) or by way of showing off any object fall within the ambit of this section. The prison term was raised from one year to three years and the imposition of a fine was made mandatory in the sentencing via the Criminal Law Amendment Act of 2013.
- Section 354 of the IPC: The law prescribes a punishment of imprisonment for a term extendable up to two years, or with a fine, or with both in cases of assault or use of criminal force upon women to outrage her modesty or with the knowledge (realisation) that such actions are likely to cause affront to a woman’s modesty.
- Sub-sections added via the 2013 Amendment in IPC:
354(A): This section categorizes the following actions as acts of sexual harassment committed by men:
- intrusive and undesirable attempts to make physical contact by way of unambiguous and suggestive sexual advances,
- solicit sexual favours, or
- attempt to show pornographic material to a woman against her consent.
The punishment for offences specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) is rigrous imprisonment for a term extendable up to 3 years, or with a fine, or with both.
The punishment for the offence specified in clause (iv) of sub-section (1) is imprisonment for either description, for a term that may extend to one year, or with a fine, or both.
354(B): Any act of assault or use of criminal force upon a woman with the purpose of disrobing or compelling her to become naked is an offence punishable with imprisonment of either description for a term ranging from a minimum of 3 years up to 7 years with liability to pay a fine.
354(C): A man who takes photographs of a woman or watches them in a private act without their consent is guilty of voyeurism, an offence punishable by a minimum prison term of 1 year extendable up to 3 years and liability to pay a fine in case of first conviction. In cases of second or subsequent convictions, the minimum prison term is 3 years, extendable up to 7 years, with the liability to pay a fine.
354(D): Stalking is a form of harassment that manifests in a man following a woman either physically or online with the intention to harm or frighten her. The punishment for the first conviction is imprisonment for up to 3 years and liability to pay a fine. For the second conviction, the prison term is extendable up to 5 years with the liability to pay a fine.
- In cases involving rape and outraging the modesty of a woman, special provisions exist for the recording of FIR by a woman police officer.
- The victims of rape or acid attacks are entitled to free first aid and medical treatment.
- Lapses on the part of public servants or hospitals will warrant punishment.
- In cases where a sexual act is established by the accused, there is no requirement for evidence of consent on the part of the woman.
- The onus to prove consent on the part of the woman rests on the accused.
The law offers protection and a mechanism to report cases of sexual harassment at workplaces through the creation of internal complaints committees and local complaints committees.
- This law specifically addresses sexual crimes committed against children under 18 years of age.
- Acts of sexual assault and penetrative sexual assault against a child, irrespective of his/her gender, are punishable with a minimum of 3 years and a maximum of 7 years in jail.
- Such acts, when committed by those in positions of power like management and staff of jails, remand homes, educational and religious institutions, relatives, guardians and so on, are classified as aggravated sexual assault.
- Abatement of an offence or attempt to commit an offence is also punishable under the Act.
- It is obligatory for any person who has knowledge of an offence or has a reasonable apprehension of an offence under the Act to report to the police.
- The law protects disclosure of the identity of the child in the media.
Section 3 of the DV Act comprehensively defines different acts of domestic violence that cause harm or endanger the health, safety, life, limb or well-being of the aggrieved person and includes physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse.
The section explains different terms like physical abuse, sexual abuse, verbal and emotional abuse and economic abuse.
It suffices to say that the catalogue of laws dealing with various legal issues facing women in India is quite exhaustive and accommodating in nature. There are no discriminatory provisions related to women in any law of the land and this dictum applies to all faiths and religions. The recent abolition of the system of triple talaq with respect to Muslim women is an example of India’s secularism.
Laws on marital rape in other countries
In many countries around the world, marital rape is classified as a crime with varying degrees of punishment. After World War II, stories of the horrors of war, including the well-documented case of ‘comfort women’ from countries like China, Korea and the Philippines who were recruited to work in comfort stations established by the Imperialist Japanese Army only to be subjected to sexual slavery by the Japanese soldiers, stirred the consciences of the societies. Following the feminist movement in the latter half of the 20th century, the issue of marital rape came into the public domain. In 1995, all countries represented at the U.N.’s Women’s Conference voted in favour of a resolution endorsing the rights of wives to refuse the sexual demands of their husbands. Today, marital rape exemption is illegal in 80 countries and marital rape is an exclusive crime in 52 countries like the USSR, USA, UK, Canada, Sweden and Poland. Unfortunately, India is not yet on this coveted list.
We shall discuss some major developments in a few select countries that help tilt the scales in favour of marital rape legislation, thereby ending centuries of unspoken and suppressed expressions of a silent majority of women across all boundaries of cultures, religions and nationalities.
The erstwhile Soviet Union was among the first countries to criminalise marital rape in 1922. Information on the subject is suggestive of the possibility of change due to the larger participation of women in the workforce and the emergence of a new social order that influenced lawmakers in favour of women’s rights. This development led to the criminalisation of marital rape in Scandinavia and many other countries of the Soviet bloc.
In the UK, there is a common law system where laws on the statute are enacted by the British Parliament and the courts are also guided by previous judgements often cited as precedents and referred to in deciding cases of a similar nature. This practise, based on the doctrine of ‘stare decisis,’ which means “to stand by things decided,” was adopted to ensure equality in the dispensation of justice and for quick disposal of cases. Case-by-case decisions incrementally expand the expanse of the common law system and it is amenable to change to conform with the changing times.
In the UK, the marital rape exemption was based on the reasoning of Sir Matthew Hale, the then Chief Justice of England, who propounded his ‘Implied Consent Theory’, where-in he wrote:
“But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.” An amendment was later inserted to add, “A husband also cannot be guilty of a rape upon his wife.”
For around 150 years, the above-mentioned views of Sir Hale remained unchallenged. As the wheels of time moved, the dynamics of marriages all around the world underwent a complete metamorphosis. Women graduated to being earning members of the family and made inroads into male bastions. Marriage is now considered a partnership of equals, and any attempt to make women subservient to men in marital relations was resented and frowned upon, leading to early breakups and divorces.
The following cases reported in the British Courts helped to shape judicial opinion in favour of marital rape.
R vs. Clarke (1949)
Facts of the case
In this case, the wife obtained a court separation order with the clause that she is no longer bound to cohabit with her husband. Notwithstanding the restraint imposed by the court, her husband had sex with her against her consent and, in the process, caused her bodily harm.
Issues involved in the case
- The husband was indicted for an act of rape against his wife.
- An appeal to quash the charge was presented on the ground that the husband can not be charged for the offence of rape of his own wife.
Judgement of the Court
Justice Byrne J. agreed that the husband can not be held guilty of rape, with the exception in the instant case being the forfeiture of the husband’s right to have non-consensual sex with his wife as specified in the court order. The Court ruled that the husband’s act of forcing sex on his unwilling wife constituted an act of rape.
R vs. Miller (1954)
Facts of the case
The wife left her husband and filed a divorce petition. Before hearing of the petition, the husband had non-consensual sex with his wife and in the act, he caused bodily harm to her as she suffered from a nervous breakdown as a result of her being thrown on the floor.
Issues involved in the case
The husband was charged with rape and causing bodily harm. The defendant cited the exemption for marital rape and argued that nervous shock does not amount to bodily injury.
Judgement of the Court
The defendant was charged with the offence of causing bodily harm and not for an act of rape. A series of similar cases led the judiciary to evaluate the relevance of Hale’s proposition as irrelevant in the modern age. In 1992, the exception to marital rape was removed from the ambit of common law and marital rape was defined as the act of penile penetration upon a non-consenting partner. Subject to certain conditions, the punishment for marital rape in the UK is on a scale of 4 to 19 years. In some cases, a life sentence can also be awarded.
As a former colony of the British Empire, the USA inherited the English common law system that accepted Lord Hale’s doctrine of marital rape exemption on the basis of a woman’s irrevocable consent for sex. Hale’s theory received support from the ‘Unites Theory’ formulated by Blackstone in the middle of the 18th century. According to the Unites Theory, upon marriage, husband and wife become one; that is to say, in a marriage, the wife forfeits her civil identity and is regarded as the property of her husband. The status of the woman was defined by the legal principle of coverture, which implies married women had no legal or economic identity except that of their husband. Similar views held sway over the judicial and legislative bodies and the marital rape exemption remained frozen in the statute over the years.
Rideout vs. Oregon (1978)
In 1977, the Oregon state legislature voted to remove the marital rape exemption. The following year, John Rideout, a resident of North Salem, was arrested for raping his wife, Greta, in front of their 2-year-old daughter in their apartment.
The case received wide publicity due to the relentless efforts of Advocate Laura X, a crusader in favour of criminalising marital rape in the United States. She led a successful campaign against the marital rape exemption law in California in 1999. Her efforts helped raise public awareness of marital rape cases in the states of New York, Florida, Virginia, Georgia, Nebraska and Ireland. John Rideout was acquitted of the charge of first-degree rape by a unanimous verdict of the jury. By 1993, marital rape was criminalised as a crime in the Sexual Offences Code in all 50 states of the USA.
How to report marital rape in India
Marital rape is not a crime in India. However, this does not prevent a battered wife from reporting an act of rape committed by her husband against her consent or free will.
By common sense and logic, as with any other act of rape, a rape of this nature will also be reported to the police for lodging an FIR and subsequent investigations that may include medical examination of the victim, recording of her statement in the presence of Magistrate First Class, and adherence to all laid down protocols under the law. The striking difference in the case of marital rape will be the recording of the name of the accused, which is the victim’s husband.
In such cases, the police will record the FIR as a case of rape under Section 375 of the IPC and mention the name of the husband as an accused.
Marital rape : the legal cauldron in India
In 2007, the UN Committee on the Elimination of Discrimination Against Women recommended that India “widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape…..”
The debate on the legality of marital rape in India continues to spark discussions in the judicial and legislative domains, with strong opinions being expressed on either side of the argument. The issue of marital rape is actively pursued by human rights activists, women’s organizations, and social media platforms, inviting opinions and reactions from common men and women.
Let us understand some key developments in the legal jurisprudence on the issue of marital rape in India.
Sakshi vs. Union of India (2004)
In this case, Sakshi, an NGO, filed a public interest petition with the Supreme Court of India, seeking judicial directions to interpret the term ‘sexual intercourse’ liberally and for the inclusion of all types of penetrative sexual assault within the definition of rape. This case had references to marital rape exemption in the written submissions and arguments of the learned counsels.
Citing the principle of stare decisis, the Supreme Court refused to entertain the petition. However, the Court issued several directions to make the trial procedure more victim-friendly.
Independent Thought vs. Union of India (2017)
In this case, Independent Thought, an NGO working for children’s rights, filed a public interest litigation in the Supreme Court of India challenging Exception 2 to Section 375 of the IPC as violative of the rights of the married girl child between the ages of 15 and 18 years, as the same constitutes rape by the husband.
In a historic judgement, the Supreme Court struck down Exception 2 to Section 375, IPC, as unconstitutional. According to this section, an act of forcible sex by a husband on his unwilling wife who is not below 15 years of age is not an act of rape. The judgement makes sexual intercourse by a husband without the consent of his wife, who is under 18 years of age, a crime.
Delhi High Court split verdict on marital rape
On May 11, 2022, the Delhi High Court gave a split verdict on the issue of criminalising marital rape in response to a bunch of petitions urging the Court to strike down Exception 2 to Section 375 of the IPC as unconstitutional.
According to Exception 2, sexual intercourse by a husband with his own wife who is not under 15 years of age is not an act of rape. The interpretation of this exception clause by the two Hon’able Judges differed, with their views stretching to opposite sides of the constitutional spectrum.
Justice Shakdher’s perspective
In his judgement, Justice Rajiv Shakdher highlights the difference between an unmarried victim of rape who is legally protected vis-a-vis the fact that “the same regime does not kick-in if the complainant is a married woman.” Further, he opines that a woman reserves the right to withdraw consent at any point in time, irrespective of her relationship with the accused. To safeguard the rights of women over their bodies, the exception deserves to be struck down as unconstitutional, being violative of the following articles of the Constitution :
- Article 14 (equality)
- Article 15 (non-discrimination)
- Article 19 (1)(a) (right to freedom of expression, which includes a woman’s right to assert her sexual agency and autonomy)
- Article 21 (right to life and liberty)
Going a step further, the judgement held Section 376B (Sexual intercourse by husband upon his wife during separation) to be unconstitutional as it imposes lesser punishment and therefore there is no justification to treat separated husbands in a manner different than any other rapist.
Justice Shankar’s perspective
In the verdict of Justice Hari Shankar, the exception to marital rape was held to be constitutional on the premise that sexual intercourse by a husband with his wife does not amount to rape. The judgement draws a comparison between a non-consensual sexual act with a stranger and a non-consensual sexual act with one’s husband. It was noted that the level of outrage likely to be experienced by a woman over being raped by a stranger would be far more intense than the outrage over non-consensual sex by her husband. It was expressed in the judgement that the exercise of judicial authority on this issue would amount to interference in the legislative sphere.
The Hon’able judges have granted them leave to appeal to the Supreme Court and there is a glimmer of hope for the advocates of women’s rights.
The Law Commission of India has not supported the move to criminalise marital rape because it may trigger an avalanche of false cases by spouses. The politicians on the floor of the House have expressed their reservations, as they perceive factors like literacy, poverty and a lack of awareness as obstacles to the implementation of the proposal.
The element of consent is essential in sexual relations between opposite sexes of legally permissible age. The act of sex should not be viewed narrowly as a timed physical union for momentary sensual pleasure. The union of a man and woman is vital for the continuation of human life on this planet; therefore, voluntary participation in this act of intimacy is desirable human behaviour. When the husband indulges in a non-consensual sexual act by forcing himself upon his wife against her wishes, he commits an act of marital rape. Therefore, he must be punished for such an act that is not yet acknowledged as a crime in our legal paradigm. Presently, cases of spousal sexual assault are addressed in other relevant sections of the IPC, Domestic Violence Act, Divorce laws, POCSO Act, etc. Unlike in western countries, the consensus on the issue of marital rape still eludes legislative intent and judicial concurrence in India.
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