Author :Mansi Jain,
Sharda University, Uttar Pradesh
Equality Now’s a report titled The World’s Shame: The Global Rape Epidemic found that India was one of only 10 out of 82 jurisdictions surveyed that still legalised rape within the marriage and protected the rapist husband form prosecution.
Marital rape is a huge problem in India. 1 in 3 men admit to raping their wives, and 1 Indian woman is raped by her husband every 3 seconds. Despite the increasing number of cases of marital rapes in India, it is not defined in any statute/law. It is a crying shame that even after so many years marital rape has not been criminalized in this country. We live in the male patriarchal society where not only in India but in other countries also the women are treated as the property of their husbands. It is one of the famous beliefs that women are physically and emotionally weaker than the men and due to this men can do anything with them. Most countries in the world recognise the degree of sexual autonomy of women after marriage and declared that rape is rape, and that rape is a crime. So what’s curbing India in making Marital rape a criminal offence within Indian legal framework?
Women are the only exploited group in history to have been idealized into powerlessness’.
In India, women consider marriage as a sacrament and pious relation due to which they accept this painful behaviour on themselves. They do not complain because of social consequences, lack of self-confidence, shortage of resources, peer pressure and so on. But it’s 2020 and India is one of the 36 countries that still have not provided women with a legal provision where she is raped by his own husband. Society says women are not protected outside the house and hence they should not be given any sort of freedom but what about that hidden and unbelievable aspect where a woman is raped within the four walls of a house by her own husband after the marriage. Isn’t strange that rape is considered a rape when it is done by a stranger but at the same time unwilling sexual intercourse between a husband and a wife doesn’t come under the ambit of rape. As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relation. It is visualised as a licence to the men to go to any dangerous extent and physically exploit their wives by snatching sexual autonomy.
People say that cases involving marital rape are going to destroy the institution of marriage. This is not true but the truth is that rape destroys marriages. Respect and autonomy are one of the pillars upon which the institution of marriage is built. The wedlock is created and should be maintained by preserving the value of respecting the choices, individuality and decisions of the spouse. Both partners must ensure that they accept each other’s approval, they must also agree with their disagreement and most importantly that a “NO” IS A CLEAR AND STRONG DENIAL. Before examining the legal umbrella the term rape and other provisions attached to it should also be discussed.
Rape is usually understood as unwanted, coerced or non- consensual sexual intercourse. Almost every day, women in our country fall prey and caught by men for fulfilling the desire of sex. Most rapes go unreported because the rape victims fear retaliation and humiliation, both in India and throughout the world. The National Crime Records Bureau (NCRB) report of 2006 mentions that about 71% of rape crimes go unreported. A UN study of 57 countries estimates just 11% of rape and sexual assault cases worldwide are ever reported. And sadly the conviction rate for rapists has fallen at a steep rate over the past 40 years. Out of all the rape trials in India, only one out of four leads to a conviction. Despite this women are subjected to various offences like domestic violence, sexual exploitation, sexual abuse and most importantly marital rape.
Marital rape also known as spousal rape is the act of sexual intercourse by a man with his own wife without her consent and against her will. The lack of consent is an essential element and need not involve any type of physical violence. In some cultures, even in this male dominated framework of Indian society, it is presumed that consent is not something that an individual wife can give because it comes as a permanent consent after the wedlock. The control of men over a wife’s body is considered to be manifested right of the husband and the marriage is arranged only to create access to procreation. It is a sad truth that a woman cannot even have a right on her own body where she is treated like a possession only at first the property of her father then after marriage, the property of her husband. Therefore with this ongoing custom, a man could not be prosecuted for raping his own wife because she is in his possession.
According to the dictum of Chief Justice Sir Matthew Hale, a husband cannot be convicted of raping his own wife on the sole reasoning that she gives up her body to the husband at the time of marriage. This principle was a prima-facie chain for the exemption in case of marital rape.
LEGAL PROVISION OF IPC
The definition of rape codified in Section 375 of the Indian Penal Code, 1860 includes all forms of sexual assault involving non-consensual intercourse with women as a criminal offence. A man commits rape if he has sexual intercourse with a woman without her consent or against her will, or if she is a minor. (The legal age of valid consent is 18 in India.) Precisely the sixth description is given to the definition of rape under Section 375 of Indian Penal Code,1860 clearly states that the consent of a girl below the age of 18 years is immaterial and the sexual intercourse with her comes under the umbrella of rape. The person who commits the rape shall be liable under section 376 i.e Punishment for rape. However, Exception 2 to Section 375 exempts unwilling sexual intercourse with a wife over fifteen years of age from this definition of rape, thus making it legal for men to rape women who happen to be their wives — aged 15 and above. This not only immunizes such acts from prosecution but reflects an outdated IPC that suppresses women’s voice and freedom. The most stubborn obstacle in the way of India criminalising marital rape is none other than the Government itself. They argued that the contract of marriage necessitates consent to sex and that criminalising marital rape, in turn, would degrade family values in India. Forced sex by husbands is treated as a matrimonial fault and have legal consequences in Indian Matrimonial law resulting in Judicial separation or dissolution of marriage under the Hindu Marriage Act,1955. It is unbelievable that the government still has this mindset where a women is unequally treated in the 21st century where the law is coined as dynamic. The Supreme Court of India and the various High Courts are currently flooded with several writ petitions challenging the of the marital rape exemption 2 of Section 375. In a recent landmark judgment, the Indian Supreme Court on 11 October 2017 decided narrowed the scope of the ‘marital rape exemption’ in India by increasing the age of consent for sexual intercourse within marriages to 18.
Case: Independent Thought vs Union of India
Case - Number: WP(C) 382/2013
Petitioner: Independent Thought
Respondent: Union of India, National Commission for Women
Independent Thought, a Non-Governmental Organisation, filed a writ petition before the Supreme Court under Article 32 to declare the exception 2 unconstitutional. Child Rights Trust, an NGO working on prevention of child marriage, joined as an Intervenor and was also heard extensively. It was argued by Independent Thought and Child Rights trust that the non- consensual sexual activity is understood as rape regardless of the victim’s age and Exception 2 created an unconstitutional classification by no rational nexus to the objectives of section 375 between wives under the age of 15 years of and those between 15 and 18 years of age. This provision recognises the vulnerability of children by creating the legal fiction that nobody younger than 18 years has the capacity for sexual consent and it is not illegal to have forced sexual intercourse by a husband with his minor wife between the ages of 15 and 18. But any sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. It is also contrary to the obligations of the State to protect the rights of the child under Article 21 as well as under international Conventions. The Court found in favour of the petitioner holding that the marital rape exemption should only cover cases where the woman is 18 years or older by replacing the previous existing age limit of a woman of 15 years of age or above. Exception 2 shall be read as "Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”. This judgement is based on mainly three causes:
1. The court found that the classification conflicted with the philosophy underlying the other statutes governing childhood, marriage and sexual relations. To harmonise Indian Penal Code,1860 Protection of Children from Sexual Offences Act (POSCO), Juvenile Justice (Care and Protection of Children) Act and Protection of Women from Domestic Violence Act criminalised any sexual activity carried out with persons younger than 18 years of age. Basically, under this, the interests of children are protected and harmonised. Universal understating of childhood pervades Indian law, where 18 years is regarded as the age of maturity as well as for understanding not just for sex and marriage but also for contract law, tort law and law on voting then why not this age is considered as statutory age for sexual consent. When the consenting age has been fixed to 18 years then it carves out no justification for the exception 2 of Section 375 IPC,1860.
2. The classification based on marital status is arbitrary and discriminatory. Hence, the court disapproved the distinction between an unmarried and a married girl. It was held that it infract the right to equality and non-discrimination.
3. Finally, the court reckoned the many adverse effects of early marriage on the dignity and well-being of the girl child. The unreasonable classification violated the right to life of those between 15 and 18 years of age.
This ruling in the aforementioned case safeguards the rights of minor girls and also called for legal reforms to prevent and address the violation of girls’ rights due to child marriage. But the gate against sexual exploitation remains wide open for a married woman above the age of 18 years and it is hoped that in future to protect and safeguard the bodily integrity there will be courts dealing with the constitutionality of marital rape for them also in the same manner.
The Indian constitution a safeguard against all the wrongs for the Indian citizens and also reflects the definition of right and wrong. Marital rape is not criminalised in India and sadly the Indian constitution is also silent on this.
1.Violation of Article 14
Although under this article, the Indian Constitution guarantees the fundamental right of equality to all but the marital law exception 2 discriminates against females who have been raped by their own husbands denying them equal protection from rape and sexual harassment. The Exception creates two classes of women based on their marital status and immunizes actions perpetrated by men against their wives. The classification created has no rational nexus to the underlying purpose of the statute. The state cannot make such unreasonable classification where it lacks in the protection of women and exemption of husbands from the punishment which is entirely contradictory to the Objective of Article 14. It not only violates the right to equality under Article 14 but it also encourages husbands to coercively enter into sexual intercourse with their wives because they know their acts are not penalised or prohibited by law. The constitution must protect the fundamental rights of the citizen.
2. Violation of Article 15
Article 15(1) says that “the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, and place of birth or any of them.” However, the exception 2 of section 375 strengthens several gender stereotypes which subordinate women in the society and hence, is violative of Article 15 of the Constitution. The constitution must ensure equal justice and no discrimination to a married woman against mental and physical abuse faced by them.
3. Violation of Article 21
Exception 2 is also a violation of Article 21 which states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” Over recent years the Supreme has interpreted this clause in various judgements to extend beyond the purely literal guarantee to life and liberty. Instead, it includes the rights to health, privacy, dignity, safe living conditions, and safe environment and continuous internet among others.
In Suchita Srivastava vs Chandigarh Administration, for instance, the Supreme Court said the right to make reproductive choices is very much within the scope of rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution and this choice can be exercised to procreate as well as to abstain from procreation.
Strongest judgement in Justice K.S Puttaswamy vs UOI, the SC recognised in Article 21 the Right to Privacy as a fundamental right of all citizens and specifically said that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature.”Forced sexual intercourse and cohabitation is a violation of that fundamental right. 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’s right to privacy is lost by marital association - all women have the fundamental right to be able to consent and to be able to say no.
The above articles clearly reflect that Exception 2 to Section 375 IPC,1860 is an infringement of Articles 14 and 21 of the Indian Constitution. It is time that Indian jurisprudence understands the callous nature of this provision of law and strikes it down.
AFTERMATH OF CRIMINALISING MARITAL RAPE (ARGUMENTS)
1. Penalising marital rape destroys Indian Culture.
In August 2019, former Chief Justice of India Dipak Misra stated that Marital rape should not be made a crime in India because it will create absolutely anarchy in families and India is sustaining itself because of the family platform which upholds family values. The government is arguing that since a majority of people in India are illiterate, uneducated, poor, conservative and religious — the major obstacle in criminalising marital rape.
2. Attack to the holy sacrament of marriage.
Criminalizing marriage itself can Destroy the institution of marriage.
Majority of marriages will fall because women will stand up to their rapist husbands( who will then become criminals in the eyes of law) and avail of the legal recourse they have to seek justice and protection. Women will want to end sexual violence they face day-after-day within their marriages.
3.Misuse of Marital rape as defence
Whenever women face any disagreement with their husband they will use this as a defence. Even women will start using this as an easy tool to harass the husbands, falsely accuse them and with these false cases and allegations, the time and efforts of the judiciary shall be wasted.
4. Courts cannot interfere in a personal matter like marriage.
The rule of law only covers the public domain. Domestic violence at home is beyond the scope of the law. Restricting the private matter between a husband and a wife is inappropriate.
Where a women is considered as the building block of the house there only she’s not provided with sufficient means to protect herself from sexual exploitation. It must be noted that the rape by husband is more brutal than rape by a stranger and its ignorance is a serious breach of a person’s fundamental right to life and personal liberty.
Our legislators must pay instant attention to the realities of sexual abuse. The protection of the institution of marriage cannot be a valid defence to contravene the fundamental right of a woman to live with dignity and bodily integrity. A bench of Acting Chief Justice Gita Mittal and C Hari Shankar of the Delhi HC argued that marriage does not mean that the woman is all time ready, willing and consenting [for sex]. The man will have to prove that she was a consenting party.”
Ensuring that marital rape is criminalized would make justice more accessible for all women, irrespective of marital status. It could also send a powerful signal that a woman always has the right to choose whether and with whom she wants to have sexual relations. Her individuality and choices must be honoured by society.