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Marital Rape: Need to reform the Laws

The idea of the institution of marriage emanates from our age old traditions
and customs which are being followed in the society till date. Marital rape is the
most common and abhorrent form of narcissism in Indian society hidden behind
the sacrosanct curtains of marriage. Social practices and legal codes in India
mutually enforce the denial of women’s sexual agency and bodily integrity which
lie at the heart of women’s human rights. The law does not treat marital rape as a
crime. Even if it does, the issue of penalty remains lost in a cloud of legal
uncertainty. In India marital rape is not defined in the Indian Penal Code and thus
not criminalized and it’s largely not viewed as rape in India due to the sacred
nature of marriage in Indian culture. Marital rape or we can say non-consensual
sex by one spouse with another spouse leads to a gravest form of human right
violation with a domestic violence or sexual abuse on the victim.

India has advanced in almost every field, yet sexual violence which occurs
within the four walls of a matrimonial home is said to be a private family matter
and is excluded from scrutiny by legal institutions like the courts.
The argument that has surfaced is due to this inhumane treatment that
women go through in the society. Our legal system and the criminal laws cannot
turn a deaf ear towards the injustice that is being perpetrated in Indian society
against women. The lawmakers should delve upon the issue and realize that it is
important to acknowledge this as an offence for the sake of sanctity of the
Constitution and the dignity of married women which must be protected.

Today, there are many countries that have recognized marital rape and
enacted laws, repealed marital rape exceptions or have laws that do not distinguish
between marital rape and an ordinary rape. The criminalization of marital rape in
the countries both in Asia and around the world indicates that marital rape is now
recognized as a violation of human rights. Despite underreporting, marital rape
unquestionably has an enormous impact on the lives of women who experience it.
The foundation of this exemption in marital rape could be traced back to
statements made by SirMatthew Hale, Chief Justice in 17th Century England in his
book ‘History of the Pleas of the Crown’. He very emphatically asserted that, at the
time of solemnization of marriage, the wife automatically hands over her legal
person to the husband and consents to all sexual acts which cannot be disavowed at
any later date for no reason whatsoever. He introduced within the marriage, a
notion of ‘implied consent’ that started at the time of the marriage and
continued for the entire course of the marriage and such consent was deemed
irrevocable by Lord Hale. This established that once married, a woman does not
have the right to refuse sex with her husband. Due to the construction of sex as a
woman’s duty within a marriage, there is always a presumption of her consent. It
is due to this reason that in majority of the countries in the world; the husbands
enjoy ‘criminal law immunity’ for raping their wives. So, the bitter truth
is wife rape has existed as long as the institution of marriage itself. The
another contention for this assumption lies in the fiction that the wife is considered
to have given her irrevocable consent to sexual intercourse to the husband at the
time of the marriage and hence the husband cannot be held guilty of rape.

Physical and Psychological Effects of Marital Rape

There is a historical myth that rape by one’s partner is a relatively
insignificant event which causes little trauma but the researches speak otherwise.
According to the studies it’s observed that marital rape often has severe and longlasting consequences for women. The reverberations include physical effects as
well as psychological effects. Besides these, there are specific gynaecological
consequences of marital rape which include miscarriages, stillbirths, bladder
infections, infertility, the potential contraction of sexually transmitted diseases
including HIV.

Though we have advanced in every possible field, marital rape is not
considered as an offence in India. Despite amendments, law commissions and new
legislations, one of the most humiliating and debilitating acts is not an offence in
India. The final version of Section 375 of the Indian Penal Code, which emerged
after deliberations in the Select Committee, is a crystallized form of Clause 359
of the Macaulay’s Draft Penal Code.

In 2005, the Protection of Women from Domestic Violence Act, 2005 was
passed which did not consider marital rape as a crime, although it considered it as a
form of domestic violence. Thus, under this Act, if a woman has undergone marital
rape, she can go to the court and obtain judicial separation from her husband. This
only seems like a patchy legislation and much more needs to be done by the
Parliament in regard to marital rape.

Marital rape reflects the waywardness of an individual. Being subject to
sexual violence by her own husbandwraps the woman in a sense of insecurity and
fear. Her human rights are sacrificed at the altar of marriage. The Indian Penal
Code has not dealt with this form of rape much. Thus, it is clearly evident that the
law which is inadequate and insufficient to protect the interests of those afflicted
with the ill of marital rape. The fundamental argument which is advanced in
favour of these so-called ‘laws’ is that consent to marry in itself encompasses a
consent to engage into sexual activity. But, does an implied consent to engage into
sexual activity also mean consent to being inflicted with sexual violence.
Even international law now says that rape may be accepted as the sexual
penetration, not just penal penetration, but also threatening, forceful, coercive use
of force against the victim, or the penetration by any object, however slight. Article
2 of the ‘Declaration of the Elimination of Violence against Women’ includes
marital rape explicitly in the definition of violence against women. These
provisions are not meant to beguile but to give the victim and not the criminal, the
benefit of doubt.

Women so far have had recourse only to Section 498-A of the Indian Penal
Code, dealing with cruelty,to protect themselves against ‘perverse sexual conduct
by the husband’. There is no standard of measure or interpretation for the courts,
of ‘perversion’ or ‘unnatural’.

42nd Law Commission Report

The Law Commission of India in its 42nd report put forward the necessity of
excluding marital rape from the ambit of Section 375. This is because they believe
that the prosecutions for this offence are very rare. They further added that it would
be desirable to take this offence altogether out of the ambit of Section 375 and not
call it rape even in technical sense.

There are number of women’s organizations and also the National
Commission for Women, they have been demanding the deletion of the exception
clause in Section 375 of the Indian Penal Code. However, the Task Force on
Women and Children set up by the Woman and Child Department of the
Government of India took the view that there should be wider debate on the issue
in question. It took the position that the definition of rape ought to be broadened to
include all forms of sexual abuse. But later, like the Law Commission, the Task
Force also abstained from recommending the inclusion of marital rape in the new
definition.

172nd LAW COMMISSION REPORT

The 172nd Law Commission report which was passed in March 2000
recommended for substantial change in the law with regard to rape wherein it
stated that explanation (2) of section 375 of IPC should be deleted. Forced sexual
intercourse by a husband with his wife should be treated equally as an offence just
as any physical violence by a husband against the wife. Regardless of the 172nd
Report of the Law Commission of India submitted in the year 1998, urging the
Government of India that the Parliament should replace the present definition of
rape under Section 376 Indian Penal Code with a broader definition of sexual
assault, which is both age and gender neutral, nothing substantial happened.

THE CONSTITUTIONAL PROVISIONS VIS-A-VIA EXEMPTIONS TO
MARITAL RAPE

We have a very progressive Constitution on paper. Article 14 guarantees
equality before law to all the country’s citizens. Article 15 prohibits discrimination
on various grounds, including religion, caste, race and gender. Article 16 provides
for equal work to all in matters of public employment. But our laws have never
seriously improved the unequal terms of male entitlement over women’s labour
and their bodies. The exemption withdraws the protection of Section 375 of the
Indian Penal Code from a married woman on the basis of her marital status. It
takes away a woman’s right of choice and indeed effectively deprives her of bodily
autonomy and her personhood.

Article 21 of the Indian Constitution enshrines in it the right to life and
personal liberty. After the case of Maneka Gandhi v. Union of India (AIR 1978,
SC 597), it has become the source of all forms of right aimed at protection of
human life and liberty. However, in the light of this expanding jurisprudence of
Article 21, the doctrine of marital exemption to rape violates a host of rights that
have emerged out of the expression ‘right to life and personal liberty’. It is the
most blatant violation of Article 21.

There is another corollary to Article 21 which is not mentioned distinctly in
the Constitution but it is an underlying factor called ‘Right to Privacy’.
Nonetheless, the Supreme Court, in a series of cases, has recognized that a right
to privacy is constitutionally protected under Article 21.

The Supreme Court in the case of ‘State of Maharashtra v. Madhkar
Narayan’ (AIR 1991, SC 207), has held that every woman was entitled to sexual
privacy and it was not open to any and every person to violate her privacy as an
when he wished. In the case of ‘ Vishakha v. State of Rajasthan’ (AIR 1997,
SC 3011), the Supreme Court extended this right of privacy to workplaces. Further,
along the same line there exists a right to privacy to enter into a sexual relationship
even within a marriage. By decriminalizing rape within a marriage, the marital
exemption doctrine violates this right to privacy of a married woman.

THE JUDICIAL APPROACH

A woman’s right to privacy is violated in case of non-consensual sexual
intercourse with the husband. Rights and duties in a marriage, like its creation and
dissolution are not the terms of a private contract between two individuals. The
right to privacy is not lost by marital association. What is sad to know is that all
stranger rapes have been criminalized and all females, other than wives, have been
given the right of privacy over their bodies thereby envisaging the right to withhold
consent and refuse sexual intercourse.

Under Indian law, exception to Section 375, Indian Penal Code lays
down that if the woman is married and not less than fifteen years of age,
sexual intercourse by the husband is not rape. Prior to the amendment in
Indian Penal Code in 2013, when the wife was between 12–15 years, the
quantum of punishment was extended to two years or fine. The amendments
which were brought in 2013 have eliminated this clause but at the same time
have not recognized the concept of marital rape and have chosen to continue
with the existing legal approach. Even the Justice VermaCommittee Report
has recommended that marital rape exemption in the Indian Penal Code should
be withdrawn.

The peculiarity of Indian law is adoption of the principle of predominance
of husband’s right over that of the wife even when she is well below the legal
age of marriage. The law covers only the separated couples; not living together
under Section 376-B of Indian Penal Code.

The court held in Haree Mohan Mythee case {(1891) ILR18Cal49} that
husband does not have the absolute right to enjoy the person of his wife
without regard to the question of safety of her. As per this decision, the only
circumstances where the law recognizes the encroachment upon husband’s
absolute right tosexual intercourse is when it becomes extremely dangerous to
woman due to some physical illness etc. and grave consequences like death
may follow. Thus, from this it is evident that no effort has been made to give
even a semblance of protection to the right of a married woman to her
physical or sexual autonomy.

INDEPENDENT THOUGHT V. UNION OFINDIA (2017)10 SCC 800

In a writ petition filed in public interest by a society, Independent
Thought, the Supreme Court has considered the scope and viability of
Exception 2 to section 375 of Indian Penal Code. The issue before the court
was to consider the recognition of marital rape when the husband has sexual
intercourse with the wife when she happens to be between15-18 years of age.
This is a landmark decision of Supreme Court whereby the court has held that
Exception 2 to Section 375 of the Indian Penal Code answers this in
negative, but in our opinion sexual intercourse with a girl below 18 years of
age is rape regardless of whether she is married or not. The exception carved
out in the IPC creates an unnecessary and artificial distinction between a
married girl child and an unmarried girl child and has no rational nexus with
any unclear objective sought to be achieved. The artificial distinction is
arbitrary and discriminatory and definitely not in the best interest of the girl
child. The court further held that the artificial distinction is contrary to the
philosophy and ethos of Articles 15(3) and 21of the Constitution as well as the
International conventions. It certainly violates the bodily integrity of the girl
child and her reproductive choices. Pointing out the obligations of the Indian
government under Convention on the Rights of the Child, 1990 to undertake
all appropriate measures to prevent the sexual exploitation and sexual abuse
of any person the court observed that the Indian government has persuaded
the legislature tolegitimize an activity which is otherwise a heinous offence
when i t occurs without marriage. The duality of the marital exemption
clause is that it comes in sharp conflict with the provisions of POCSO
(Protection of Children from Sexual Offences) and JJA (Juvenile Justice
Authority). The POCSO defines ‘penetrative sexual assault’ which becomes
aggravated when the offender is related to the victim. Since the Act has got
overriding effect, a very complexand peculiar legal position emerges whereby
the husband is exempted from any offence under Indian Penal Code and he
becomes liable to be punished for aggravated sexual assault under POCSO.
The Committee has recommended the deletion of the marital rape exemption
under the Indian Penal Code while making the reference that a rapist is a rapist
irrespective of his relationship with the victim. The state legislature has
inserted a Sub-Section (1-A) in Section 3 of the PCMA declaring that every
marriage henceforth will be void ab initio, if violative of the age requirements
specified. Therefore, the husband of a girl child will be held liable for the
offences under POCSO if the husband and the girl child are living together in
the same household.

The court has considered various options to lessen the turmoil of the girl
child and observed:

We are left with absolutely no other option but to harmonise the
system of laws relating to children and require exception 2 to section 375
IPC to now be meaningfully be read as: “Sexual intercourse or sexual acts by
a man with his own wife, the wife not being under eighteen years of age, is
not rape.” It is only throughthis reading that the intent of social justice to the
married girl child and the constitutional vision of the framers of the
Constitution can be preserved and protected and perhaps given impetus. Thus,
the Apex court decided to bring Exception 2 of Section 375 within the four
corners of law and in consistency with the Constitution of India.
The Independent thought judgment is indeed an evocative illustration of
judicial activism and craftsmanship to give a reasonable interpretation to a
provision which incorporates a dead concept inthe legislation. But at the same
time, it is a little disconcerting to note that how the Supreme Court on more
occasions than one, has very categorically stated that they would not like to
make a comment on marital rape generally where the age of the wife is 18 or
more than18 years.

In Justice K.S. Puttuswamy (Retd.) v. Union of India, {S(2017),10 SCC 1,
AIR 2017 SC 4161)}, the Supreme Court recognized the right to privacy as a
fundamental right of all citizens. The right to privacy includes ‘decisional privacy’
reflected by an ability to make intimate decisions primarily consisting of one’s
sexual or procreative nature and decisions in respect of intimate relations.
Therefore, forced sexual cohabitation is a violation of the fundamental right under
Article 21. There is a need for the law to evolve in a manner where human
problems are dealt with a humane approach.

The panel set up to review the Verma Committee suggestions put forward
that criminalizing marital rape would put the entire family under stress and can
potentially destroy the institution of marriage. However, it is also argued that the
act of rape itself has the potential to destroy the institution of marriage.
Furthermore, concerns regarding misuse often come up while discussing
criminalization. To this, human rights advocates respond that the difficulty in
proving the commission of the offence or its possible misuse should not deny the
victims from seeking legal recourse. Therefore, penalizing marital rape must
necessarily come with amendments to the Hindu Marriage Act.

CONCLUSION:

After all the analysis that I have come across I find that marital rape though
under-reported exists in our society. The courts aren’t accepting the concept of
marital rape but that doesn’t mean that wives are not being raped by their
counterparts. Now, it is about time, we honour, our women and their right to bodily
autonomy. In the year 2013, the UN Committee on Elimination of Discrimination
Against Women (CEDAW) recommended that the Indian government should
criminalize marital rape. But the difficulty will arise in case of misuse of such law,
how it will be determined as to when the consent was withdrawn. In other rape
cases veracity of statement of prosecutrix, when she is the sole witness (because in
marital rape cases there cannot be any other witness except the prosecutrix herself),
is tested with corroborative medical or circumstantial evidences such as last seen
of the accused at place of incident or with the victim, injuries on private parts,
position of hymen, presence of spermatozoa of the accused in the semen of victim
or from her body or cloths, bodily injuries witnessing use of force, but in the case
of marital rape except injuries all circumstances will be presumed against the
accused and will not be needed to prove. Therefore, in order to cut down
possibility of abuse of the any such penal provision, there must be some safeguards
that marital rape cannot be alleged without proof of injuries showing use of force
with sufficient medical evidence.

There is one argument that is doing rounds with respect to the consequences of law being framed against marital rape is that the women may tend to misuse such a law if it comes into force and they would file false cases of rape against their husbands. However, it would be good to keep in mind that any law can be misused but that doesn’t mean it should not exist. So, it is upon the judiciary to carefully examine each case and make proper suggestions so that loopholes could be kept away. Also, when our governments and lawmakers could take steps to end certain anti-women customs like Sati and female
infanticide, why can’t they address this one? Now, there is an urgent need for the
judiciary to recognise marital rape as an offence under the Indian Penal Code especially as there has been a surge in domestic and sexual violence cases against women due to the pandemic-induced state-of-affairs. Besides, if we truly wish to rethink the republic as one in which women really matter, we need to move beyond contemplating about family relationships. The State needs to acknowledge the women’s actual experienced reality in contexts of unequal pay, allocation of inferior work and denial of rights over their mind and bodies. We also need to deliberate upon the fact that did the women, ever consent to be ruled by a toxic brand of masculinity that would treat her as merely a vote bank or a second-class citizens? Though occasionally women are handed over the morsels of progressive or revised legislation but they hardly matter as they are still denied their essential status as independent and equal citizens. So lastly, I would assert my view by quoting J.S.Mill ‘over himself, over his own body and mind, the individual is a sovereign’. Also, we have to give this issue a thought as every reform was once an opinion.

Also Read: 
Rights of undertrial prisoners in India
NALSA vs union of India
How To Send A Legal Notice In India

Dr. Vidyottma Jha
Dr. Vidyottma Jha
ADVOCATE, SUPREME COURT OF INDIA
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