The institution of marriage is one of the most significant pillars of the Indian culture and heritage since the beginning of time, however, the changing Indian scenario has revealed the existence of rape within the bond of marriage, though still not recognized by the Indian law and ignored by society. This article posits the incompetency of the Indian law to acknowledge the autonomous sexual rights of married women, and failure and inconsistency of the pre-existing provisions in delivering justice to the same. It enumerates the previous attempts of legislative committees, lawyers and politicians, for criminalising marital rape, through a timeline and attempts to interpret several judgements that indicate the need for rendering both women and men as equals in a marriage, in every aspect, thereby strengthening its argument for the inclusion of marital rape as an offence under Section 375 of the Indian Penal Code.
Keywords: Marital Rape, Section 375, Sexual Rights, Consent, Indian Penal Code.
Rape is commonly defined as “the crime, typically committed by a man, of forcing somebody to have sex with him, especially using violence”. While the legal intricacies of the offence vary in different countries a common yet controversial form of rape often mentioned, is marital rape. Though not different from the offence of rape, marital rape is often considered as highly varying on the ground that it is committed by a husband on his wife. Several countries that do not recognize the latter as a criminal offence tend to have structured the law on beliefs that once married, a woman not only commits to the sacred relationship but also consents to the ownership of her body by her husband thereby submitting to sexual intercourse as and when he demands.
These ideologies have deep-seated roots in the primitive tenets across the world, when women were considered mere possessions of men and the former’s wishes, opinions and consents were irrelevant. Though the world has come a long way from such orthodox societal precepts, the remains of the same still overshadow the legal and familial rights of women. The United Nations Population Fund published a report in February 2020, based on 57 countries; providing that only 55% of married or in-union women aged 15 to 49 make their own decisions regarding sexual and reproductive health and 25% of the women can’t say no to sex.
India is one of the countries which consider marital rape as an exception to the offence of rape. Under Section 375 of the Indian Penal Code, Exception 2 provides for the exclusion of sexual intercourse or sexual acts by a man with his wife as rape. However, since rape is based on the absence of will and consent of the victim, what the law fails to acknowledge is that even though sexual intercourse with a spouse seems to be expected of a couple tied together by vows of marriage, these vows do not stipulate the consent of either the husband or the wife. Moreover, the unfortunate Indian scenario tends to put only married women at risk of having their sexual rights violated by their husbands and more so due to the exclusion of marital rape as an offence under the Indian law.
Thus, the focus of criteria amounting to rape should be the woman’s consent and not her marriage vows. The Supreme Court of California, in People v. John Z, asserted that a woman has the absolute right to say no to sexual intercourse and also to stop it after commencement; if compelled thereafter the act amounts to rape. So, even if her commitment to marriage is mistaken as consent to sexual intercourse, a ‘no’, communicated whether before commencement or during the supposedly consented sexual act should be respected and should otherwise amount to rape. This article intends to posit a logical analysis as to why India requires to include marital rape under Section 375 of the IPC.
Inconsistency with other Indian laws
The failure of the Indian law to recognize rapes occurring within marriage not only denies females the right to justice but also contradicts with other Indian laws, and with the essence of the Preamble; thereby failing to provide justice and equality to “all” its citizens.
Denial of justice to victims of rape based on their marital relationship with the perpetrator denies equality before law, under Article 14 of the Constitution. It also does not yield intelligible differentia because sexual intercourse against the will and consent of the married woman, being the matter of concern, does not reasonably distinguish her from other such victims.
It takes away a married woman’s right to express her consent to sexual acts as the law regards all sexual acts as an exclusion to rape, which by default renders her free will to consent inconsequential, thereby impeding her freedom of expression under Article 19(1)(a) and denying the freedom of personal liberty under Article 21 of the Indian Constitution.
The Protection of Women from Domestic Violence Act, 2005 prima facie appears as the better-equipped law for catering to the women faced with sexual abuse within their marriage. However, the Act includes sexual abuse as a form of domestic violence under Section 3 and defines it as “any conduct of sexual nature” thereby recognizing such offences against married women but becomes incongruous with the exception of marital rape under the IPC. Moreover, even if charged with domestic violence, the law only provides for reliefs like compensation or damages for injuries but does not allow the victim to avail the punishments for rape despite the commission of the offence against her.
While it seems that the IPC provides for other legal resorts to victims facing rape within a marriage, justice is only prima facie. Thus a husband can be charged with Sections 354 and 498A, for assault or criminal force to outrage a woman’s modesty, and cruelty, respectively, the available punishments being imprisonment between 1 to 5 years in the former and up to 3 years in the latter, as opposed to the punishment for rape (under Section 376 of IPC), which is rigorous imprisonment of at least 7 years extendable to life imprisonment. So, the available provisions thereby present an escape from justice for husbands who commit rape on their wives as the IPC does not even provide the minimum sentence for rape to such offenders.
Virtue v. Justice
The Indian law provides equal protection of the rights of each citizen. Even a sex worker, though looked down upon by many of the so-called virtuous minds of the Indian society, has protection from offences committed against her.
In Jai Bhagwan v. State (Govt. of N.C.T. Delhi) the Supreme Court held that, even if the prosecutrix is assumed to be of immoral character or easy virtue, it does not give the accused the right to commit rape on her and she has the right of refusal to submit to sexual intercourse to anyone. A similar judgement was given in State Of Maharashtra and Another v. Madhukar Narayan Mardikar, where the Supreme Court asserted that “Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also, it is not open to any and every person to violate her person as and when he wishes.”
So, the Indian law and Judiciary have found instances where a woman’s character or profession are irrelevant to her right to consent, the latter being of ultimate importance, irrespective of societal and cultural notions, but in case of a woman devoting her commitment to the chaste relationship of marriage, her consent is insignificant. Therefore, it is unfair that a woman’s profession or any other aspect has no relation to whether or not her sexual rights remain protected but her marital status permits, although just one man, to disrespect and violate those rights because she is married to him. While the comparison doesn’t intend to degrade or take away from the much-needed rights and protections provided to the sex workers, it attempts to posit a clear picture regarding the status of women in the supposedly paramount structure of Indian marriage and family.
History of Marital Rape law in India
Although the current Indian law does not recognize marital rape, over the years India as a country has made several attempts to bring a change in this regard.
- The 167th report on The Criminal Law (Amendment) Bill, 2012, by the Parliamentary Standing Committee had differing opinions as some members advocated the scope for a married woman to undertake the issue of marital rape, however, the Committee ultimately reckoned that it would destroy the institution of marriage, hence women should resort to the other provisions already available, like cruelty against women.
- The Justice Verma Committee on The Criminal Law (Amendment) Bill, 2013 suggested that the exception of marital rape be removed from the IPC thereby excluding the defence of marital relationship between the perpetrator and the victim. However, these suggestions brought no changes in the law to date.
- Shashi Tharoor had presented a private bill titled Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018 which proposed the exclusion of Exception 2 (Section 375 of the IPC) to render justice to the victims of marital rape.
- Advocate Anuja Kapur filed a petition for the inclusion of marital rape as grounds for divorce along with clear guidelines for registering marital rape cases. However, the Supreme Court rejected her plea, asking her to approach the Delhi High Court due to the already pending cases in the latter, on the topic.
- Nonetheless, a prominent change in the said exception materialized when the Supreme Court in its 2020 judgement to the petition, Independent Thought v. Union of India & Anr., asserted that the exception shall apply only if the married woman is above 18 years of age, instead of the previous criteria of above 15 years of age. Though this did not cater to the sexual rights of married women above 18, it resembled an essential step towards the aspired change in that regard.
The Indian virtues preach the power and vigour of the goddesses worshipped by both men and women, claiming to appreciate all women as a representation of the same. However, both law and society settle for treating them as a mere property that a husband gains right to, after marriage. In a 2019 conference, an ex-CJI reckoned that marital rape should not be considered an offence because it will lead to “absolute anarchy” in the virtuous Indian family structure. However, if marriage is identified as a pious institution then treating it as a property deal that entitles men to a woman’s body is highly offensive to the very core of Indian ideology.
While such remarks are disheartening, several judges have attempted to indirectly address the issue of women’s autonomous sexual rights within the ties of marriage. In Joseph Shine v. Union of India, Indu Malhotra, J. asserted that a law may become out-dated as the times when women were invisible to law, living in the shadows of their husbands are gone and legislations demanding such stereotypes in relationships violate fundamental rights. Thus, entering the holy matrimonial bond does not entitle a man to sexual intercourse.
The Gujarat High Court stated in Nimeshbhai Bharatbhai Desai v. State of Gujarat, that marital rape is in existence in India and is a disgraceful offence that scars the trust and confidence in the institution of marriage.
Therefore, recognition of marital rape under the IPC shall not hinder the institution of marriage but present a balanced framework instead, where a woman is equal in every aspect of the relationship and not a slave to the whims of her husband. Moreover, it can be argued that an institutional structure that needs to be preserved by crushing the autonomous sexual rights of women is in all probability, a structure not worth saving. However, it is not the structure that shall be harmed on the inclusion of marital rape as an offence, but only the mindset of those who are still clinging to the age-old stereotypical degradation of women, and their rights.
It is in this sense that a change in the Indian definition of rape is desired so that women raped within matrimonial bonds can be protected, thereby ensuring that men realize the consequences of ignorance towards the dignity and sexual rights of their spouse, without the defence of marriage.
Author: Anchita Singh, Department of Law, Calcutta University