This article has been written by Tina Pali pursuing Diploma in Corporate Litigation and edited by Koushik Chittella.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
This article attempts to understand marital rape in addition to the societal impact of forcing a woman to give birth to a child or suffer the trauma and pain that is caused due to her doing something against her consent, as it is violative of her fundamental rights. Additionally, this article also attempts to understand the need for the criminalisation of marital rape. The purpose of diving into this issue is to draw inspiration for our Indian legislature to create guidelines regarding the same and also to provide the lawmakers with some suggestions to formulate provisions over the same.
Are all women safe in their homes
John Stuart Mill, in Chapter 4 of his book “The Subjection of Women”, describes that “marriage is the only actual bondage known to our law, where there are no legal slaves except the mistresses of every house”. In some situations, women are more unsafe in their own homes than in the outside world. Being at home, they do not complain about the wrongdoings of their in-laws or husbands and if they gather the courage to lodge an FIR, they will end up facing mental trauma that is gifted by our society. Sexual harassment and rape are the biggest hurdles that a victim faces from the time of reporting the matter till it goes to trial. Marital rape is an even more sensitive issue, as it does not have any legislation penalising the wrongdoers. In India, it is not seen as a crime. In most divorce cases, sexual violence is seen during pregnancy, at the early ages of marriage and even between 18 to 49 years of age, i.e., about 29.3% of women were experiencing spousal violence.
Historical timeline of marital rape
The issue of criminalising marital rape came before the Delhi High Court for the first time in 2015 and the Central Government was of the view that criminalising marital rape may destabilise the institution of marriage. The Delhi High Court started hearing petitions related to marital rape again in January 2022, where a two-judge bench arrived at a split verdict, one stating that it violates women’s right to consent and another supporting that marriage necessarily implies consent. This judgement was controversial in the eyes of the general public.
Moreover, the Law Commission of India rejected the need for the removal of the marital rape exception cited in Exception 2 of Section 375. Parliament is also of the view that the removal of the Exception cannot be done, as marriage is for the purpose of procreation, they thus wished to protect the conjugal rights of the parties and the consummation of marriage. But the Supreme Court, in September 2022, ruled on women’s right to safe abortions regardless of marital status, reflecting the signs of marital rape. Even the Justice JS Verma Committee in 2012 provided some suggestions to criminalise marital rape.
Current status of women in the rural and urban areas of India
It can be noted that 32 percent of women who have ever been married have experienced physical, emotional and sexual violence at the hands of their spouse. Under the age group of 18 to 49 years, about 24.2% and 31.6% of women ever married have experienced spousal violence in urban and rural areas respectively. Whereas, it is noted that the percentages of women under the age group of 18 to 49 experiencing violence during pregnancy to give birth to a male child are as follows:
- 2.5% in urban areas and
- 3.4% in rural areas
- 3.9% in total.
Right to not have a child
It can be seen in India that women, immediately after their marriage, are not ready to have children due to some insecurities, i.e., providing a better life to their child, etc. and they are forced by their husbands and in-laws to have a male child. Sometimes, due to the violent nature of the husband, women have to face bodily sexual injuries too.
Although, as per the doctrine of coverture under the British law, the husband and wife are treated as one under marriage laws, with no individual legal identity after their marriage, women still have the right to live with human dignity and privacy. So when dignity, privacy and the right to make choices for their reproductive decisions are in question, then they will not be seen as one in the eyes of the law merely due to their marriage.
The applicability of word “Consent”
The word consent in the sense of sexual intercourse is very important to understand, but in the real application of it, for a long time, it was considered by the law that consent is implied and given at the time of marriage by both parties. This assumption fails to take into account the fact that a human being can withdraw consent. This forms the basis of the question of whether sexual consent is necessary or not in a marriage.
Criminalisation of marital rape : is it necessary
It is necessary to be criminalised, as it is against the basic rights of women. It violates the fundamental rights to equality, freedom of speech and expression and, more importantly, the right to life and personal liberty. Due to exception 2 of Section 375, married women do not have the right to protect their own bodies. It is very strange to say that women being raped by strangers have a legal remedy, but the woman being sexually assaulted by her husband has no right to claim remedy or to seek protection in this regard.
Why is marital rape still not criminalised
There are various reasons for this. Firstly, proving that marital rape has happened is very difficult. Secondly, there are higher chances of possible misuse of the rape laws if they are formulated for marital rape. Women can misuse it, just like with the rape laws currently available, in order to take a step back from the marriage. Thirdly, it destabilises the institution of marriage, whose sole purpose is the procreation of children, if, after solemnisation, consummation does not happen. Fourthly, it was mentioned by the Delhi High Court that a marriage means implied consent; the husband gets the right to marital intercourse as per his wish because he got the implied consent of his wife, which was given as soon as the marriage took place. These are the biggest hurdles before the judiciary and legislature due to which marital rape is not criminalised in India till date.
Current status of marital rape as an offence overseas
Out of 195 countries in the world, 77 have criminalised marital rape and others do not classify it as an offence. The United States, Canada, South Africa and the United Kingdom are those countries that set the example of criminalising marital rape by providing certain guidelines and laws in this respect.
The United Kingdom, in the case of R v. R (1991), changed the landscape for marital rape completely. In this case, the husband was convicted of attempting to rape his wife and Lord Emilie upheld the husband’s conviction for rape and said that marriage does not make a wife submit herself irrevocably to sexual intercourse in all circumstances.
As per “A guide to marital rape law”, to prove marital rape and sentence the convict, the prosecution must prove that when penetration occurred intentionally but the victim did not consent to it and some sexual coercion or assault happened, the sentence can range from 4 to 19 years, depending on the specifics of the case.
Recommendations
A rapist remains a rapist regardless of his relationship with the victim. Merely due to the possibility of the law being misused or that it is unable to be proven, the judiciary as well as the legislature can’t deny making a legal remedy regarding it. As it can be said, proving anything in a court of law related to marital rape seems impossible due to the lack of evidence. It is right that any rule or provision made may be misused, but in current parlance, we see many things being misused. That does not mean they are not regulated by the law or on the grounds of morality. So, there is a need for clear guidelines with regards to dealing with such matters and a need for creating awareness of how freely the woman can register her complaint without any future repercussions. One possible solution is that the police force can be sensitised to this issue and a special police force is created for addressing allegations of marital rape. The administration must ensure that women facing such issues can be given access to psychological help. This department must conduct a background check of the husband against whom the complaint has been registered, but this needs to be done in a secretive manner so that no harm is caused to the complainant and misuse on grounds of marital rape as a defence cannot be claimed. Though the Domestic Violence Act, 2005 hints at marital rape as sexual abuse in a live-in or marital relationship, the only remedy available is civil in nature. Additionally, marital rape falls under the category of cruelty and can be a ground for divorce. Thus, we see that there is a need for an amendment of existing laws or the enactment of a new law by the legislature criminalising marital rape.
Conclusion
In 1860, when the offence of rape (Section 375) of the Indian Penal Code, 1860, came into being, the understanding of marriage was different. And since that time, society evolved and new issues have come into existence like marital rape, gender equality, feminism, etc. This led to a better understanding of the terms marriage, privacy and consent, which state that consent is required. No means No, even after the marriage, consent can’t be taken for granted. It is necessarily required to be addressed in both social and legal terms, where rules regarding burden of proof and evidence should be framed strategically as marriage in today’s time is regarded as a partnership of equals. So, there is a genuine need to make regulations that provide women with rights related to this and protect their right to live their lives freely with human dignity and liberty, right to sexual privacy and the right to a reproductive choice as guaranteed under Article 14 and Article 21 of the Indian Constitution.
References
- John Stuart Mill, The subjection of Women, Chapter 4 (1869) https://www.marxists.org/reference/archive/mill-john-stuart/1869/subjection-women/ch04.htm
- Pratiksha Baxi, PUBLIC SECRETS OF LAW: RAPE TRIALS IN INDIA (2014)
- Ministry of health and family welfare, national family health survey (fifth round) phase –II report
- Debate: Isn’t It Time India Makes Marital Rape a Criminal Offence?”, The Quint
- Marriage, intimate relationship not a defence for rape: Justice J S Verma, THE ECONOMICS TIMES, Jan 24,2013 https://economictimes.indiatimes.com/news/politics-and-nation/marriage-intimate-relationship-not-a-defence-for-rape-justice-j-s-verma/articleshow/18165197.cms
- Bhodhisathwa Gautam v. Subhra Chakraborthy ,1996 AIR 922
- K.S. Puttuswamy v. Union of India (2017) 10 SCC 1
- Suchita Srivastava & anr v Chandigarh Administration, SC (Appeal no. 5845 of 2009)
- Indian Constitution, 1950 art.14, 21.
- R v R (1991) UKHL 12
- https://www.noblesolicitors.co.uk/about/a-guide-to-marital
- The Hindu Marriage Act, 1955, Section 13(1)(ia)
- Indian Penal Code, 1860 section 498A
- Priya Jain, is marital rape a crime in India?, https://www.youtube.com/watch?v=SfI8Y5fxBPY
- Indian Penal Code,1860, section 375 exception 2
- https://www.legalserviceindia.com/legal/article-3295-marital-rape-no-means-no-even-after-marriage.html
- Uday v State of Karnataka (2003) SC
- Manjima Bhattacharjya, a law won’t end marital rape-but it’s needed all the same, Indian Express, https://indianexpress.com/article/opinion/columns/manjima-bhattacharjya-marital-rape-law-needed-8343646/
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