Marital rape- An Oxymoron?

Introduction

The general meaning of rape can be understood as unlawful and forced sexual intercourse. Merriam Webster defines it as an illegal sexual activity committed by force or due to threat of injury and is against the will of the victim or someone incapable of giving consent due to mental disability, disorder, and unconsciousness.

The term’s legal definition, in the context of its consideration under Indian laws, has been codified under Section 375[1] of Indian Penal Code, 1860.

When put into simpler words, the definition under the section includes every form of unlawful non-consensual sexual intercourse. Moreover, the explanation talks that even mere penetration, without the woman’s consent, is sufficient to constitute the crime of rape. However, in the exception, it explicitly defines that if there is intercourse by a man with his spouse, who must be above 15 years in age, it will not constitute the offence of rape, even if such intercourse is non-consensual and therefore, immunize such acts from prosecution.

In a society like India’s, women are generally perceived to be an inferior and unimportant property of the family. This belief system has influenced our legislators in completely ignoring the offence of spouse abuse or sexual assault by giving it the security of the spouses union right. By this, they accepted; that ladies are just a protest of their better half’s sexual gratification without her own will over her sexuality. This perception laid down the right of ladies to standardization and equality.

Rape is not just brutality against women but a massive violation of a universal ideal of life and freedom. It is not changed by the relation between the victims and the suspect. It is not right to believe in this way that sex with a spouse is the right granted to them by marriage. Today, many nations have either instituted marital rape laws, abolished exceptional marital rape cases, or have regulations that do not consider marital rape and ordinary rape. It states an indication that this aspect of rape is seen as a breach of human rights.

Arguments

Upon marriage, women’s consent is assumed to be eternal and implied. 

It has been profoundly rooted in the minds of people in our society that once a woman is married, she gives her spouse a never-ending uninterrupted sexual consent. Once a union minister Haribhai Prathibai Choudhary, in reply to the question of DMK member of parliament Kanimozhi in Rajya Sabha in 2015, wrote that marital rape could not be considered in India[2]. For many reasons, the most prominent one is that her marriage is regarded as a sacrament and a holy institution and other reasons like social customs, values, and religious beliefs. According to the National Family Health Survey N4 (2014-2015), about 31% of married women in India were exposed to physical, sexual, and emotional abuse and assault by their partners[3]. Although the proportion of married women who suffer physical and sexual violence from their husbands dropped from 37% in 2005-2006 it remains a dangerously high figure[4]. But the laws must go ahead and above the stereotypes of people and be the moderator of personal base emotions.

Women might misuse specific laws against marital rape.

In the matter of Rit Foundation v. Union of India[5], the affidavit submitted to the Delhi high court, and the union government took the view that if marital rape is criminalized under the law of the country, it may become an easy tool to harass husbands. Further, it also argued that if any and every sexual activity between the spouses would qualify to be considered under marital rape, then the final call decision would solely rest on the wife.

These arguments of misusing these provisions have been used repeatedly in various instances while enacting other laws relating to women’s protection like the Domestic Violence Act[6], Section 498A[7], IPC  which criminalizes physical and mental cruelty by husband or his family. But there has been no such incident except in deficient rate cases of dowry and cruelty, and there is never any reasonable evidence for the misuse of this argument. Looking at the number of convictions to understand the reality of the situations might hinder the importance of the actual situation because of below-listed reasons:-

1. An inadequate and lengthy investigation
2. No proper collection of evidence 
3. Ignorance from the side of women herself 

Also, in a country where the judiciary stands as an independent body if any of the laws will be misused, this organ being the whole sole interpreter and guardian of the constitution has the authority to step in and dismiss the false cases.

The misusing argument is misleading as it excluded how poor and disadvantaged women can use these marital rape laws even if they existed. Lack of infrastructure, access to appropriate legal aid, and stigma provide all resistance to females to obtain justice under these rules. It is also important to note that these cultural arguments that criminalizing marital rape would not work in India because, as per the data, women’s literacy rate is still lower. In poor and unprivileged women they might have a mindset that marital intercourses are their obligation under marriage. They will not even report it even if they face any harassment. Moreover, If women are not educated enough to use the laws properly, they will eventually become incapable of misusing it.

Against the Indian culture 

In the year 2019, the former Chief Justice Deepak Mishra took the view that marital rape cannot be made a crime in India[8]. In a Times of India report, he said that “There is no necessity to bring such a law; it is my personal view.” Here the ground for argument is that marital rape cannot be criminalized in India as it is in western countries because of significant socio-economic and cultural inequalities between them. In conjunction with alarming ignorance, the concept is that social norms and religious values establish an atmosphere in which marital rape can not be criminalized as society is still not ready for it. The most highlighting view behind this is that since most people in India are illiterate, poor, stereotypical, which is not the case in western countries, they believe that a husband can never rape his wife because the consent is supposed to be applied forever. It becomes a significant obstacle while criminalizing marital rape as not doing so it will acknowledge those men who regularly violate their spouse’s right. Another argument: In support of this can be that the authorities might fear that if they criminalize such acts, more and more marriages will fall apart because women will raise their voice against this wrongful act and might seek justice and protection.

India- Legality of marital rape

India is one of the worlds 36 countries that does not legalize marital rape. It institutionalizes this exception of marital rape as a valid one under section 375 IPC[9]. Thus, if the spouse is older than 15 years in age, the men have the legal authority to rape her.

Feminist groups have consistently claimed that marital relationships can not be considered as a life devoted commitment to sex. Over ⅔ of married women in India between the age group of 15 – 49 have been abducted, harassed and pressurised to provide sex as according to a report by the UN Population Fund[10]. Although many laws and legislation have been passed in India, addressing violence against women in her household is similar to laws against female child murder and violent conduct at home. Marital rape is one such area that has failed to get attention as wrongdoing against women. Here marital rape is barricaded behind the holiest drapes of weeding.

According to laws laid down in current legislation, a wife is assumed to give permanent consent for sexual relationship and hence marital rape, which means sexual intercourse between the spouses, which is non -consensual from the side of a wife, is out of the jurisdiction of commuting the offender of rape. Marital rape, not being under the ambit of conviction, is a loophole in our country’s law. In India, the definition of marital rape is the ultimacy of what we term as “implicit consent.”

In the year 2005 Protection of women from Domestic Violence was passed, which became the first legislation in the country, which considered marital rape a kind of domestic violence. According to the provisions laid down in this act, a lady can approach the court in case of marital rape and seek legal partition from her husband. Marital rape is an act that is unrealistic wherein a lady’s body is raped; love for her is redirected, destroyed, and is thrown away with uncertainty and disrespect. Her human rights are suspected in the holy name of marriage. There are so far two legal remedies available to women when they face cruelty and violence. One is domestic violence AST. The other one is under Section 498A of IPC. Unfortunately, in its concept of violence by husband and in-laws, it defines only physical and emotional/mental abuses so far. However, the laws to protect the rights of marital rape victims are insufficient and ineffective, and the means taken are abhorrent. 

In the case of Independent Thought v. Union of India[11], an NGO named independent thought approached the SC in order to file a writ petition under Article 32[12] to declare the exception under section 375 IPC as unconstitutional. Another Ngo working for the prevention of child marriage also joined in as an intervener. The NGOs believed that a rigid division between married and unmarried minor girls for the punishment under sexual violence caused to them is a baseless part of the provision. It is also against the state’s duties and obligations to preserve and protect the right of a child under article 21[13] of the constitution. It is also contrary to the obligations agreed Upon by our nation under certain international conventions. 

The other party, viz UOI, argues that it is up to parliament’s duty to ratify the confusion created by the exception of this section. It also puts before as an argument that this exception has been continuously considered by the parliament even then the final decision has been taken to keep it. If it is changed, it might look like that the state is interfering in one’s personal marital life. However, a two-judge bench read out the exception 2 of section 375 of IPC by way of two conflicting opinions but finally agreed to increase consent to 18 years. It also called for legislative changes to avoid and redress against girl’s rights abuses caused by child marriage. Section 375 was then amended under criminal law amendment act 2013[14] and raised sexual intercourse by consent to 18 years. 

In their case, the court specifically explained marriage is a personal area, and if the state criminalizes anything related to it might go against the very institution of marriage.

In another case of Nimishbhai Bharat Bhai Desai v. State of Gujarat 2 April 2018[15], the Gujarat high court ruled that a non-consensual act of marital rape violates faith, respect, and trust in a marriage and that this issue has destroyed the very institution of marriage.

Violation of Article 21

Article 21 as defined in the constitution, states that no person shall be denied his right to life and personal liberty except according to the procedure established by law. Over time, this article’s ambit has been increased and extended in including the right to health, privacy, safe environment, etc. Recently the judiciary has started to acknowledge rights related to unwanted sexual activity under Article 21.

Firstly in the leading landmark case of KS Puttaswamy v. UOI[16], Supreme court recognized privacy as a fundamental right. The court stated that privacy includes ” decisional privacy reflected by the ability to make personal decisions primarily consisting of one’s sexual, procreative nature and decisions in respect of intimate relations.

In another case of the State of Karnataka v. Krishnaapa[17], the court held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion to the right to privacy and sanctity of a female. Furthermore, it upheld the view that non-consensual or forced intercourses will be amounting to physical and sexual violence.  

In the case of Suchita Shrivastava v. Chandigarh administration[18], SC equated that right to make choices regarding sexual activity with the rights to personal freedom, privacy, dignity, and bodily integrity.

Right to live with human dignity

In the case of Bodhisattva Gautam v. Subhra Chakraborty[19] court held that rape was a sexual crime to a lesser extent than a show of hatred against women for mortifying them. In this way, the concept of marital rape exception under the law curbs the spouses’ right to live with human dignity. Any legislation that violates women’s right to live with dignity and makes it suitable for a woman to have sexual intercourse without her consent is unlawful. 

In another instance of the Chairman railway board v. Chandrima Das[20], SC observed that is not just an offence as defined under IPC but has a much larger meaning which constitutes a crime against the society as a whole. 

Right to sexual privacy 

In the case of kharak Singh v. State of Uttar Pradesh[21] and Govind v. State of Madhya Pradesh[22], SC interpreted that article 21 implicitly guarantees right of privacy. Under Article 21 the right to remain unbound and not exacerbated is included. Any violent sexual activity infringes on the right to privacy and the right to sexual freedom. It is proposed that the teaching of marital exclusion to rape undermines the right of a married lady to safety by forcing her into a sexual relationship without even her will.

In the landmark case of Vishakha v. State of Rajasthan[23], the right to privacy at the workplace was extended to a woman. Certain guidelines named as Vishakha guidelines were also released in order to extend the protection to them. 

Legal Recognition of Same-Sex Marriage: A Necessity

Right to bodily self-determination 

The idea to this right lies upon that particular individual being the whole sole leader in matters closely related to his/her body, and the more private the decision is, the more robust the right is. The will is the key creator of his fate that decides his life. Sexual intercourse is one of those most independent decisions that the lady keeps for herself. Sex-based choices are a kind of self-expression and self-assurance. On the off chance that the law wanted to take away the freedom to accept and denounce such consent, it denies a lady her safe right to the true self. Thus it argued that the principle of marital exception effectively denies a married woman her right to self-assurance.

The SC in the case of the State of Maharashtra v. Madhukar Narayan mardikar[24] pointed to one-sided protection of one’s own body. The disturbing point here is to see how the law has put out the other spouse in an advantageous manner and has not yet granted her protection over her own body. In contrast, women who have been subjected to rape by strangers are criminalized perfectly well, but marital rape isn’t. It was chosen in on these circumstances that a prostitute has the right to reject sex on the off chance that she is unwilling to do so.  

Furthermore, in the case, Shree Kumar v. Pearly Karun[25] the Kerala high court held that the offence if rape under Section 375 IPC will not be dragged in SC the spouse does not live separately from her husband under a partition agreement or by any tradition or use irrespective of the likelihood that they may be liable to sex by her better half without her permission. For this situation, the spouse had intercourse against her will when she went to live with her husband for two days due to the separation settlement procedure, which was taking place between the parties.

Conclusion 

Marital rape is still not completely criminalised in India. However, there have been efforts made to do but aren’t as successful as for now. For instance, the Justice Verma committee[26] which was constituted in 2012 for Nirbhaya gang-rape case, was firm in its opinion that anti-rape laws of the country need reformation and strengthening. It further argued that the relationship between the accused and the victim is not vital for injuring whether there has been consensual activity. Even after many efforts have been made, one-sided support for these laws has not been witnessed.

It is sceptical that a female has the full right to freedom, property before or after the marriage but does not have right over her own body after marriage. This exception might make women believe that they aren’t safe and protected under the law once they get married. They might associate this as an under the privilege of marrying.

The arguments put forward in supporting not criminalizing marital rape are oppressive precisely when the judiciary is coming up with these statements. The explanations in precedents are enough to initiate change in the fundamental law itself, but contrary to this, much more importance is given to ideas displaying support. Moreover, as under article 14[27], equality has already been granted as a fundamental right; this exception becomes contrary. It violates females who have been assaulted sexually by their husband and are denied protection. Secondly, it also discriminates between married and unmarried women in seeking justice.

Ensuring that marital rape is criminalized in India will make justice more available to all women regardless of marital status. It will send in a strong signal that women still have the right To choose whether to have sexual relations and with whom to have.

MEN IN INDIA ARE PRESENTLY IMMUNE IF THEY RAPE THEIR WIVES; HAS TO END.

 

References

1. Indian Penal Code ,1860,s. 375.
2. https://indianexpress.com/article/india/india-others/concept-of-marital-rape-cannot-be-ap plied-in-india-govt/ (Last visited September 22, 2020)
3. http://rchiips.org/nfhs/nfhs4.shtml (Last visited September 22, 2020)
4. https://www.thebetterindia.com/134673/survey-nfhs-marital-rape-india/ (Last visited September 22, 2020) 
5. Writ petition (civil) 284 of 2015. 
6. The Protection of Women From Domestic  Violence  Act, 2005. 
7. Indian Penal Code,1860, s. 498. 
8. https://timesofindia.indiatimes.com/city/bengaluru/no-need-to-make-marital-rape-an-offence-ex-cji-dipak-misra/articleshow/68785604.cms (last visited September 22, 2020)
9. https://www.indiatoday.in/education-today/gk-current-affairs/story/marital-rape-312955-2016-03-12 (Last visited September 22, 2020)
10. https://centreforfeministforeignpolicy.org/journal/2017/10/13/marital-rape-in-india (Last visited September 22, 2020)
11. Writ petition (civil) no. 382 of 2013 
12. Constitution of India, art. 32
13. Constitution of India, art 21 
14. The Criminal Law (Amendment) Act, 2013. 
15. R/CR . MA /26957/2017.
16. Writ petition (civil) no. 494 of 2012. 
17. Cri.R.P No. 554/2000.
18. Civil appeal no. 5845 of 2009. 
19. 1996 AIR 922 SCC (1) 490.
20. (Civil appeal no. 639 of 2000) 2 SCC 465. 
21. 1963 AIR 1295 , 1964 SCR (1) 332. 
22. 1975 AIR 1378, 1975 SCR (3) 946. 
23. AIR 1997 SC 3011.
24. AIR 199/SC 207. 
25. 1999 (2) ALT Cri. 77; II (1999) DMC 174. 
26. https://www.prsindia.org/report-summaries/justice-verma-committee-report-summary (Last visited September 22, 2020).
27. The constitution of India, art. 14.
    

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BY- Janavi Chhabra |Guru Gobind Singh Indraprastha University