Marital Rape in India and Why It Should Be Criminalized: An Essay

Rape is a heinous act of sexual intercourse committed against any natural person forcefully without the consent of such person against whom it is committed. Rape has been contained within the ambit of sexual assault, which also includes acts that fail to be regarded as intercourse, by several regimes. For a long duration of time rape was contemplated to be caused by rampant sexual impulse, however now it is considered as a pathological contention of power over a victim. Section 375 of the Indian Penal Code defines rape as an act committed by a man against the will and without the consent of a woman. However, marital rape is an act that is committed by husbands against their wives non-consensually. In this work I’ll discuss in detail what is marital rape and why it should be criminalized in India.

Meaning of Marital Rape

Marital rape or spousal rape means indulging in sexual intercourse with one’s spouse without consent. The absence of consent is an essential element and need not include physical violence. Marital rape is deemed to be a form of domestic violence and sexual abuse. Even though, traditionally sexual intercourse within marriage was regarded as a right of spouses, involving in the act without the consent of the spouse is now broadly classified as rape by many societies across the world, renounced by international conventions and progressively criminalized.

Status of Marital Rape in India

India is one of the thirty- six countries that still have not criminalized marital rape. Exception 2 to Section 375 of IPC states that non-consensual sexual intercourse by a man with his wife, if she is over 15 years, does not amount to rape. Thus, coercive and non-consensual intercourse by a husband with his wife (above 15 years of age) is outside the ambit of rape. It has been presumed that a woman, on marriage gives her consent forever to her husband for an act of sexual intercourse.

In India, almost 83% of married women aged between 15 and 49 have blamed their husband for sexual violence whereas 7% have called the bygone husband an offender, according to the 2015-16 report of the National Family Health Survey. As per the report of National Family Health Survey - 4, 4% of the women were forced by the husband to enter into sexual intercourse, 2.1% to perform sexual acts and 3% were threatened when the wife did not want to or wish to perform.

In 2014, Ashish Gupta of the Rice Institute, a non-profit association, announced that the number of women, who have encountered sexual brutality by their spouses, is multiple times the number of women encountering sexual savagery by non-intimate accomplices.

In 2017, The DailyO detailed a recent report by the International Center for Research on Women and the United Nations Population Fund on 9,500 respondents in seven states of India. The report said that 17 percent of the wives announced sexual viciousness from spouses while 31 percent (one in each three) men conceded that they had submitted sexual savagery against their wives.

In the case of the Harvinder Kaur vs. Harmander Singh, the Delhi High Court held that the Constitution of India could not intervene in household matters as it would destroy the institution of marriage. The court also stated that “in the privacy of the home and married life neither Article 21 nor Article 14 of the Indian Constitution have any role to play”.

In the State of Maharashtra & anr. vs. Madhukar Narayan Mardikar, the Supreme Court asserted that every woman has the right to privacy and it must not be violated.

In Shri Bodhisattwa Gautam vs. Ms. Subhra Chakraborty, the Supreme Court held that rape violates Article 21 of the Indian Constitution as it hindered fundamental human rights and breached the victim’s right to life and dignity.

After the Nirbhaya rape case in 2012, the Justice Verma Committee had suggested criminalizing marital rape and said that marriage didn’t mean an irrevocable consent to sexual activities. But the Government of India neglected the suggestion.

In the case of the State vs. Vikash, 2014, a special fast track court in Delhi stated that “the petitioner and respondent (accused) being a legally married husband and wife, the petitioner being major, the sexual intercourse between the two, whether forcible, cannot be considered as rape and no conviction can be fixed upon the accused”.

In 2015, the RIT Foundation filed a public interest litigation in the Delhi High Court summoning the immunization of marital rape in Section 375 of the IPC on the grounds of violation of the fundamental rights, i.e., Article 14, 15, 19, and 21 of the Constitution of India.

In 2016, Maneka Gandhi, then minister for Women and Child Development stated that due to illiteracy and poverty in India the concept of marital rape could not be applied here even if it is accepted and understood globally.

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However, in Independent Thought vs. Union of India, the Supreme Court was compelled to revisit into some of the theoretical suppositions on which the marital rape exception is based as it infringes constitutional rights of girls who are married between the age of 15 and 18 years. In the stage of provisions of Section 375 Sixthly, IPC, Section 3 and Section 5 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and Section 3(1) of the Prohibition of Child Marriage Act, 2006 (PCMA) pursued with the legislative intent and silhouette of apt provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, the Protection of Women from Domestic Violence Act, 2005 (DVA) and Section 2(d) of the Protection of Human Rights Act, 1993 (PHRA), constitutional rectitude of Exception 2, so far it connects to sexual intercourse between husband and wife above 15 but below 18 years of age was doubted. The Supreme Court ruled that Exception 2 to Section 375, IPC, need to meaningfully read as: “Sexual intercourse or sexual acts by a man with his wife, the wife not being under eighteen years of age, is not rape”. However, sexual intercourse with a wife, whose marriage with him is void as he was already married and had a living spouse and who was aware of the fact of the first marriage, amounts to rape.

In the case of Nimeshbhai Bharat Bhai Desai vs. The State of Gujarat, the Gujarat High Court submitted that marital rape is not just a concept and the notion of ‘implied consent’ in marriage and should be collapsed. The law must provide security to every woman (married or unmarried) to protect her corporal independence.

In the case of Anuja Kapur vs. Union of India Through Secretary, 2019, a PIL was filed by Anuja Kapur asking the Court to direct the Government of India to release some guidelines and laws on marital rape. But the bench of the Supreme Court headed by Justice SA Bobde and Justice BR Gavai refused the petition and said that the work related to the formulation of the laws is of the legislature and not the judiciary and the court is more involved with the interpretation of the law rather than drafting it.

Why Marital Rape Should Be Criminalized in India?

Violation of Article 14 of the Indian Constitution

Article 14 of the Constitution of India assures that “the State shall not deny to any person equality before the or equal protection of the laws within the territory of India”. Even if the Constitution ensures equality to all, Indian criminal law discriminates against those women who have been raped by their husbands.

Earlier when the IPC was drafted in the 1860s, a married woman was not contemplated as a separate or an independent legal body. Instead, she was regarded as the chattel of her husband. As an outcome to this, she did not procure many rights, now guaranteed to her as an independent legal body, comprising the right to file a complaint against the accused under her own identity. Exception 2 to Section 375, IPC, which exempts sexual actions committed by husbands against their wives from being regarded as acts of ‘rape’, is largely persuaded by and acquired from the already existing doctrine of blending the woman’s identity with that of her husband. All Indian laws enacted during the 19th century have a greater impact of English laws and Victorian norms. Exception 2 to the definition of rape under Section 375, IPC, was drafted on the foundation of Victorian patriarchal norms that did not identify men and women as equals, did not allow married women to acquire property, and blend the identities of husband with a wife, under the ‘Doctrine of Coverture’. But time has changed now. Indian law now considers husbands and wives as an independent legal body, and sufficient justice in modern times is explicitly concerned with the security of women. This concern can be witnessed in the form of a plethora of statutes intended to secure women from violence and harassment, passed since the turn of an era, comprising the Protection of Women from Domestic Violence Act and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act. Exception 2 to Section 375 violates the right to equality incorporated in Article 14 of the Indian Constitution as it discriminates against married women by disconfirming them equal protection from rape and sexual abuses. This exception produces two classes of women based on their marital status and exempts actions committed by men against their wives. Correspondingly, Exception 2 makes viable the victimization of married women without reason other than their marital status while securing unmarried women from similar acts, i.e., rape and sexual harassment. However, this distinction between married and unmarried women violates Article 14 hitherto as the classification has no reasonable nexus to the underlying object of the statute. In Budhan Choudhary vs. State of Bihar and State of West Bengal vs. Anwar Ali Sarkar, the Supreme Court held that any classification under Article 14 is subject to a test of reasonableness that can be passed only if the classification has some rational relation to the object that the act sought to achieve. But Exception 2 thwarts the object of Section 375 to protect women and punish those involved in the barbaric activity of rape. Immunizing husbands from punishment is wholly contrary to that objective. In simple words, the repercussions of rape are the same whether a woman is married or unmarried. Furthermore, it could be more difficult for a married woman to escape abusive situations at home because they are legally, and in most cases financially tied to their husbands. In actuality, Exception 2 persuades husbands to enter into sexual intercourse with their wives vigorously as they are aware of the fact that their acts are not penalized by law.

Since no reasonable nexus can be construed between the classification generated by Exception 2 and the underlying purpose of the Act, it does not comply with the reasonableness test and hence violates Article 14 of the Constitution of India.

Violation of Article 21 of the Indian Constitution

Exception 2 to Section 375, IPC, also violates Article 21 of the Constitution of India “no person shall be denied of his life and personal liberty except according to the procedure established by law”. This clause has been interpreted by the Supreme Court of India, with time and again in several of its judgments to stretch the meaning of this clause rather than confine it within the literal meanings of life and liberty. It held that the rights guaranteed under Article 21 include all the aspects which are essential for living a good life for example right to health, privacy, dignity, safe living conditions, safe environment, and many more.

In present times, courts have started recognizing a right to refrain sexual intercourse and to excuse oneself from unwanted sexual activity incorporated in the wider aspect of the right to life and personal liberty.

In the case of the State of Karnataka vs. Krishnappa, the Supreme Court said that “sexual violence except being a barbaric act is an unlawful interference with the right to privacy and sanctity of a female”. And also held that sexual intercourse without consent amounts to physical and sexual abuse. After that, in the Suchita Srivastava vs. Chandigarh Administration, the Supreme Court compared the right to choose alternatives related to sexual activity with that of right to personal liberty, dignity, and bodily integrity within the meaning of Article 21 of the Indian Constitution. The Supreme Court in its most recent judgment has expressly acknowledged the right to make choices concerning intimate relations within Article 21 of the Indian Constitution. In the case of Justice K.S. Puttaswamy (Retd.) vs. Union of India, the Supreme Court acknowledged the right to privacy as a fundamental right of all citizens under Article 21 and adjudged that the right to privacy embraces “decisive privacy contemplated by an ability to build intimate decisions mainly comprising one’s sexual or reproducing nature and decisions regarding intimate relations”.

Coerced sexual living is a violation of the fundamental right, i.e., of Article 21. The above judgments do not differentiate between the rights of married and unmarried women and there exists no contradictory judgment declaring that the right to privacy guaranteed to an individual is lost by the marital alliance. Hence, the Supreme Court has observed that the right to avert or abstain from sexual activity for all women, notwithstanding their marital status, as conferred by Article 21 of the Indian Constitution. Moreover, Exception 2 violates the right to live a healthy and dignified life as guaranteed by Article 21 of the Indian Constitution. As stated above, it is well established that the right to life incorporated in Article 21 is not solely a right to subsist. In this stratum, the courts have time and again adjudged that the ‘right to life’ encircles a right to live with human dignity. Still, the very subsistence of Exception 2, falls short to dissuade husbands from involving in acts of coerced sexual proximity with their wives affecting the physical and mental health of women negatively and sabotage their right and ability to live with dignity.

However, the Legal Service India recognized three reasons against the criminalization of marital rape:

1. Marriage is sacred and criminalization of such an act would lead to the destabilization of society.
2. There is a fear of a large number of fraudulent cases being filed against husbands.
3. To prove it medically is another lacuna that has helped the offenders to continue to molest or abuse their wives and excuse themselves from the crime.

United Nations on Marital Rape

On 25th June 2019, the UN urged countries to end marital rape and close legal loopholes. The United Nations said that the home is one of the most dangerous places for women to live, as an examination showed that only 4 out of 10 countries condemn spousal assault. Twelve countries allow offenders to avoid prosecution by marrying their victims, according to UN Women's annual Progress of Women in the World report. “We have seen incredible improvement in taking out oppression against women, in laws, anyway it is no mishap that family laws have been the slowest to change”, - Phumzile Mlambo-Ngcuka, executive director of UN Women, said in its foreword. “The stunning inescapability of intimate partner viciousness implies that factually, home is one of the most perilous spots to be for a woman”.

In 2017, almost 60% of female casualties of deliberate murder were killed by a relative, a pace of 137 women killed every day, the report said. Almost 1 of every 5 women aged 15 to 49 internationally experienced physical or sexual maltreatment from a previous or current accomplice or companion in the earlier year, the report likewise found, portraying brutality against women as 'genuine and universal'.

Conclusion

Marital rape or spousal rape must be treated as a crime as it is nowhere a right of a husband to force or threaten his wife to enter into sort of sexual activities. Exception 2 to Section 375, IPC, is ultra vires the fundamental rights guaranteed by the Constitution of India, i.e., Article 14 and Article 21. It is not justified to discriminate against a married woman to that of unmarried and marital status should not be a parameter to decide whether the rape has been committed or not. It is high time now that the legislature should wake up and strike down this provision from the statute as it’s the duty of the state to protect an individual whether married or unmarried from such acts which are barbaric. Therefore, by keeping in mind the fundamental rights of a woman and her right to be recognized as an independent legal body notwithstanding marital status new laws should be made and imposed more effectively.