This article is written by Vrinda Gupta, a First Year B.A. LLB (Hons.) Student of Ideal Institute of Management and Technology & School of Law, Karkardooma, Delhi.
Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element and need not involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse. Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse’s consent is now widely classified as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized. For many cultures, ideas of marital rape seem often foreign imposed and contradict the belief that such matters should be dealt with privately rather than by the government.
In India the law criminalizes rape in most cases, although marital rape is not illegal when the woman is over the age of 18. However, until 2017, men married to those between 15 and 18 could not be convicted of rape. Marital rape of an adult wife, who is unofficially or officially separated, is a criminal offence punishable by 2 to 7 year in prison; it is not dealt by normal rape laws which stipulate the possibility of a death sentence. According to the Protection of Women From Domestic Violence Act (2005), other married women subject to “sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman” by their husband may demand for financial compensation including regular allowances and child custody. They also have the right to continue to live in their marital household if they wish, or may approach shelter or aid homes. However, marital rape is still not a criminal offence in this case and is only a misdemeanour.
THERE ARE TWO PERSPECTIVES OF MARITAL RAPE:
- MARRIAGE IS NOT A SOCIALLY SANCTIONED SEXUAL SLAVERY, THERE SHOULD BE CONSENT OF YOUR SPOUSE. NO INSTITUTION IS ABOVE AN INDIVIDUAL’S DIGNITY. IF PHYSICAL VIOLENCE IS ILLEGAL, HOW COME SEXUAL VIOLENCE NOT?
The definition of rape codified in Section 375 of the Indian Penal Code includes all forms of sexual assault involving nonconsensual intercourse with a woman. However, Exception to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution. India is one of the thirty-six countries that still have not criminalized marital rape. The Supreme Court of India and various High Courts are currently flooded with writ petitions challenging the constitutionality of this exception.
Violation of Article 14 of the Indian Constitution
Article 14 of the Indian Constitution ensures 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.” Although the Constitution guarantees equality to all, Indian criminal law discriminates against female victims who have been raped by their own husbands. Moreover, married women may actually find it more difficult to escape abusive conditions at home because they are legally and financially tied to their husbands. In Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwar Ali Sarkar, the Supreme Court held that any classification under Article 14 of the Indian Constitution is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective that the act seeks to achieve. Because no rational nexus can be deciphered between the classification it does not satisfy the test of reasonableness, and thus violates Article 14 of the Indian Constitution.
Violation of Article 21 of the Indian Constitution
Article 21 states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” In The State of Karnataka v. Krishnappa, the Supreme Court held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.” In the same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence. Later, in Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution. In Justice K.S. Puttuswamy v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right of all citizens and held that 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.”Forced sexual cohabitation is a violation of that fundamental right.
The above rulings do not distinguish between the rights of married women and unmarried women and there is no contrary ruling stating that the individual’s right to a privacy is lost by marital association. Thus, the Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution.It is time that Indian jurisprudence understands the inhumane nature of this provision of law and strikes it down.
- MARITAL RAPE WOULD DESTABILISE THE INSTITUTION OF MARRIAGE AND COULD BECOME AN EASY TOOL TO “HARASS HUSBANDS”. IT’S AGAINST INDIAN CULTURE. ONCE MARRIED, WOMEN’S PERPETUAL CONSENT IS IMPLIED AND WOMEN WILL MISUSE ANY LAW AGAINST MARITAL RAPE.
Another argument the Centre gave in court which many other make is that the law would be prone to misuse, and could become “an easy tool for harassing husbands”. The Centre has also submitted before the Delhi high court that “what may appear as marital rape to an individual wife, it may not appear so to others”. Such arguments stem from the basic structure of criminal law which prescribes the standard of “reasonableness” or “reasonable person” as one of its cornerstones.
In criminal law, the act or omission of the accused is to be judged from the lens of “reasonableness” or “reasonable person”, which is generally the perspective of “an average, ordinary person who is a representative of the general community”. Such an approach seems to be problematic for marital rape in particular, because of the mainstream perception that marriage gives the husband constant consent for sexual intercourse.
The recent judgment by the Gujarat high court in Nimeshbhai Bharatbhai Desai v State of Gujarat elaborately dealt with the issue of marital rape, and stated that, “making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape”; however, due to non-recognition of marital rape as a crime under the Indian legal framework, the court held that the husband is liable only for outraging her modesty and unnatural sex. Similarly, the apex court in Independent Thought v Union of India has criminalised sexual intercourse with a minor wife aged between 15 and 18 years, but has refrained from making any observation regarding the marital rape of a woman who is above 18 years of age.
In August 2019, former Chief Justice of India Dipak Misra said that marital rape should not be made a crime in India, “because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values,” The Indian government has suggested that those seeking to stop women being raped by their husbands were “blindly” following Western customs, This country has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, the mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital rape.
The misuse argument is also faulty in that it ignores how disadvantaged women are even to use the marital rape law if it exists, let alone misuse it. A lack of resources, access to legal help and stigma all provide resistance to women actually achieving justice under these laws, as can be seen from rape and domestic violence laws.
The cultural argument that criminalizing marital rape won’t work in India because women are illiterate, uneducated and poor directly contradicts the argument that criminalization of marital rape would lead to misuse. If women are not educated enough to properly use the law, it follows that they would be just as unable to misuse the law.
If it is actually the fear of marriages falling apart that is stopping the government from criminalizing marital rape, then, in a way, it acknowledges that given the legal recourse and protection, women will want to end sexual violence they face day-after-day within their marriages. At which point it becomes important to ask: by placing so much value on marriages and family and pushing for status quo, whose rights is the government protecting? The husbands raping or the wives being raped? If criminalizing the violent rape of two-third of married Indian women destabilizes the institute of marriage and family, then so be it. And even if some women misuse the law, that’s what the judiciary is there for — to weed out the false cases and dismiss them with an appropriate penalty! To quote the Gujarat High Court judgment, Justice J.B. Padriwala says: “Let it be stressed that the safeguards in the criminal justice system are in place to spot and scrutinize fabricated or false marital complaints, and any person who institutes untrue and malicious charges, can be made answerable in accordance with the law.”