image

‘MARITAL RAPE’ AND ‘INDIAN CRIMINAL JUSTICE’ – THE NEED TO CRIMINALISE THE OFFENCE

BY – K.L.Praharshitha

‘Marital Rape’ –  The cruel form of violence which enjoys ‘societal exemptions’

Rape, according to the Indian law, is an act of violation committed against a woman’s private person and dignity.  It is an ultimate blow to her sense of security. According to the Supreme Court of India,   it is a “deathless shame and the gravest crime against human dignity”.[1] Undoubtedly, the gravity of the offence when committed by a person of trust or relation increases immeasurably. If it is the spouse who commits such an act of violation against his wife, the consequential plight undergone by the women can only be imagined.  Unfortunately, owing to various societal and cultural factors, the offence of ‘Marital rape’ happens to be one of the hidden, veiled and often ignored truth of most of the societies. In many Jurisdictions, the traditional sacramental and intimate values attached to the institution of ‘marriage’ have resulted in the evil being disregarded or irrationally justified. In such cases, the Victim, her family, the society and ultimately the State do not even qualify Rape by husband as an offending Act, let alone a grave crime. This complicated case of ‘Marital Rape’ is one of the most cruel violations against the femininity and fact that it has been left unaddressed by several legal systems is soul stirring.


[1] Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922.

There are several fundamental societal as well as legal principles which offer challenges against the criminalization of ‘Marital Rape’. Traditionally, rape inside marriage was not considered a crime since a man could not be regarded to have violated something which was culturally considered his very own property- his wife.[1] However degrading and demeaning the concept is, the thought remained engraved in the traditional laws of various societies. Another principle that advocates in support of ‘marital rape’ being an exception to the general offence of Rape, is the ‘irrevocable implied consent’ which the wife is said to have given to her husband as a part and parcel of marriage.[2] In other words, a woman’s marriage to a man constitutes an unconditional permission as regards to sexual relations. A woman is therefore viewed as a husband’s property, and her legal life is viewed to have been integrated and consolidated into that of a spouse.[3] None of the above arguments, however, justify the act of sexual violence committed by a husband on his wife, a woman who places ultimate trust in him

Breaking traditional social construes, many jurisdictions across the world have either enacted special provisions or repealed the existing provisions pertaining to marital rape. A few of them include The United States, Hong Kong, Canada, China, Denmark, Australia, France, Germany, Belgium, Ireland, New Zealand, Japan, and the United Kingdom (UK). However, several legal systems including India, are yet to bring in reforms pertaining to the offense.


[1] Mill, J.S., The Subjection of Womened. S.M. Okin, Indianapolis, Hacket, 1988, p. 33.

[2] Hale, Matthew, History of the Pleas of the Crown, p. 629. (1736, London Professional Books, 1972)

[3] To Have and to Hold- The Marital Rape Exemption and the Fourteenth Amendment”, 99 HARV. L. REV. 1255, 1256 (1986) p. 442.

The legal position in India

Section 375 of the Indian Penal Code criminalizes the offense of Rape. The provision is followed by two explanations and two exceptions. Further, Section 376 provides for the punishment. While in general, the offense is punishable by imprisonment for a minimum period of seven years which may extend to life, in case of aggravated situations, the prescribed period of imprisonment is 10 years at the least. What becomes the most relevant while discussing the aspect of marital rape is the Second Exception to Section 375 which reads as follows;

Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.”

Therefore, an act of Rape within marriage doesn’t amount to an offense unless and until the wife in question is below 15 years of age. Therefore, a woman beyond 15 years of age does not enjoy any protection under IPC, from rape committed by her husband. The 1983 amendment however criminalized rape by the husband during the period of judicial separation and the offense is punishable with imprisonment of 2 years and fine.[1]

Though the Rape law has undergone a number of subsequent amendments, so as to make it more inclusive and accessible, there is no positive initiative from the side of the legislature towards scraping down exception 2, let alone laying a separate law criminalizing Marital Rape.[2]  However, considering the grave nature of the crime and the huge number of women who are likely to be victimized by it, it is important that we examine and evaluate the need and the question of the legitimacy of criminalizing the offense. The following section evaluates the Constitutional validity of Exception 2 to Section 375 of IPC.

Firstly, the Exception is violative of the Fundamental ‘Right to Equality’ guaranteed under Article 14 of the Constitution whichstates that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India“. Therefore the provision permits only ‘reasonable classification’ which has a rational nexus with the objective that is sought to be achieved.[3] However, by virtue of Exception 2, a separate class of married women was created unreasonably and they are excluded from enjoying the protection of the law from the offense of rape committed by their husbands. It denies them equal protection of the law against rape and sexual violence in marriage. In fact, said exception frustrates the purpose of the law, which is to offer unconditional protection to women from sexual violence.

Secondly, the Exception clearly violates the ‘Right to Life’ provided under Article 21 of the Indian Constitution. Recent judicial activism has broadened the scope of Article 21 immeasurably and the ‘Right to life’ is time and again held to include ‘Right to live with dignity.’ Rape being an offense against a woman’s mental and physical health, clearly violates her ‘right to live with dignity’ incorporated under Article 21.[4] The fact that married women are being denied protection against violation of their very fundamental Right to life, by virtue of Exception 2 to Section 375 under IPC, marks the need to scrape down the said provision which is clearly ultra vires of the Constitution. 

In this regard, it is pertinent to note that Courts have also expressly recognized an individual’s ‘Right to Sexual Orientation’ and ‘Right to Abstinence’.[5]  In Suchita Srivastava v. Chandigarh Administration,[6] the Supreme Court ruled that the ‘Right to privacy’ includes the right to exercise choice pertaining to sexual activity. Further, in the renowned case of Justice K.S. Puttuswamy (Retd.) v. Union of India,[7] the Supreme Court held that “…the right to privacy as a fundamental right of all citizens and it consists of one’s sexual or procreative nature and decisions in respect of intimate relations…”.  The above judgments reflect on the fact that the right to freedom of choice related to sexual and intimate relations could be enjoyed by all individuals including married women.


[1] Indian Penal Code (45 of 1860), Section 376A.

[2] The Criminal Law (Amendment) Act, 2013 (Nirbhaya Act).

[3] Budhan v. State of Bihar, AIR (1955) SC 191

[4] The Chairman, Railway Board v. Chandrima DasState of Karnataka v. Krishnappa

[5] Govind v. State of M.P, AIR (1975) SC 1378; Kharak Singh v. State of U.P, (1963) AIR SC 1295 

[6] (2008) 14 SCR 989

[7] (2017) AIR 2017 SC 4161

The anticipated reforms and the way forward.

Even though ‘criminalization of marital rape’ has been recommended as early as in the year 1971 in the 42nd Law Commission Report, and has been re-emphasized in the 172nd Report[1]in 2000, no reforms have been initiated to date. Though there are civil remedies available under the Domestic Violence Act of 2005, the Act only goes as far as treating such abuse as domestic violence, merely offering a remedy of judicial separation.[2]  Therefore, there is no complete protection for women as ‘marital rape’ is not even a crime in the first place.

The entire analysis puts forward a strong argument as to why Exception 2 to Section 375, IPC, has to be scraped down marital rape has to be introduced as an offense under the general Rape law, if not as a special law. However, one cannot ignore a number of challenges in realizing the goal. The said challenges are the very arguments the critics put forward in advocating against the criminalization of marital sexual abuse.

It is undoubtedly difficult to establish the commission of an offense of marital rape, owing to the fact that sexual relations are integral in a marriage.  Traditional standards of proof and forensic evidence like semen analysis might not work in this peculiar case. However, mere difficulty in establishing guilt cannot be used as a ground to disregard the commission of an act of violence. In fact, in rape cases that are often committed in isolation, it is the  evidence that plays an important role in proving the guilt of the offender.  In cases pertaining to marital rape especially, a wholly bigger picture has to be seen. A history of aggression, domestic violence, mental and physical abuse has to be checked. Coming to the question of consent, the concept of ‘implied consent by virtue of marriage’ has to be wholly disregarded. ‘Lack of consent’ or ‘express objection’ has to be the fundamental basis for determining the commission of such offense.[3] Thorough and timely forensic evidence as to signs of forced non-non-consensual intercourse can establish the lack of consent of the wife.  Additionally, other allied laws like matrimonial, divorce, and child custody laws should be amended appropriately so as to provide wholesome protection to the women seeking justice against marital rape. Marital rape should be made an unequivocal ground for divorce, the first right of custody over minor children should be offered to the mother and a provision has to be enabled to provide them with maintenance.


[1] 172nd report of Law Commission of India on Review of Rape Laws, March 2000, para 3.1.2.1

[2] The Protection of Women from Domestic Violence Act, 2005, Section 3 Explanation 1 (ii).

[3]  Shroff, Aditya & Menzes, Nicole, “Marital Rape as a Socio-Economic Offence: A Concept or a Misnomer”, Student Advocate, Vol. 6.

Conclusion

The international community perceives marital rape as an act of utter Human Rights violation. The proof of the same lies in the fact that around 106 countries have expressly enacted legal sanctions against such abuse. 32 countries out of them treat it as a separate crime and 74 countries have included it under the ambit of their general Rape law. Unfortunately, India is one of the 36 countries which have not criminalized such violence.

In a country where around 10% of married women are reportedly victimized by sexual abuse from their husbands,[1] and adolescent wives are brutally subjected to sexual violence, the absence of any kind of legal sanction against marital rape could be proven to be deadly. As against the under-emphasis that the subject is associated with, marital rape has a profound negative impact on the lives of victims. Undoubtedly, ‘Marital Rape’ is one of the most prevalent, yet under-discussed forms of cruelty that Indian women are vulnerable to. The Indian legal system should initiate immediate reforms to unveil the mask called the ‘sacrament of marriage’ and perceive the cruel treatment that most Indian women are suffering from.


[1] International Institute for Population Sciences (IIPS) and Macro International. National Family Health Survey (NFHS-3) India. http:// http://www.rchiips.org/nfh s/nfh s3_national_report. shtml (accessed Oct 26th,2021).

Tags: No tags

Add a Comment

Your email address will not be published. Required fields are marked *