CONSTITUIONAL EXAMINATION OF MARITAL RAPE

Introduction

Marriage is a special connection between two individuals and their families. However, if this marriage is performed against the will of the people involved in it or if they are not happy, things might go south. Because of the patriarchal nature of our culture, which dates back to the days of hunting and gathering, it makes sense that men would express feelings of power and dominance. The Penal Code, 1860, governs the rape laws. It provides an exception for rape which is based on marriage.

Nevertheless, most individuals do not realise that the British created these regulations long ago. Marital rape was not seen as a crime then, which may be one of the reasons it was excused from the criminal laws. This research paper focuses entirely on the repercussions of marital rape and why it violates the Indian Constitution.

Marital Rape

The act of sexual intercourse with the spouse without her consent is Marital Rape. Consent plays a crucial role.

Marital rape is still not recognised as a criminal offence in India, and the law remains uncertain regarding the same. This is major because the idea of "consent" stays null and void when the rapist and victim are married, i.e., husband and wife. As society feels with marriage, consent automatically comes.

According to Section 375 IPC Exception 2, sexual intercourse by a man with his own wife (not being 15yrs of age) is not Rape. This exception creates a position of inequality and encourages husbands to take advantage of their wife's bodies since they will not be held liable in the eyes of the law.


In Bodhisattwa Gautam vs. Subhra Chakraborty[1], Justice Ahmad said that "marital rape is a cruel act, in turn, destroys the entire psychology of a woman and pushes her into deep emotional crises."


The roots of this provision are found in 2 two doctrines of the British colonial era.

The first doctrine was given by Matthew Hale, the Chief Justice of the King's Bench Hale's Doctrine said: "Husband cannot be guilty of rape. By their mutual matrimonial consent and contract, the wife has given herself up in this kind to the husband".

The Doctrine of Coverture is the Second Victorian doctrine that influenced marital rape immunity. According to this doctrine, a woman had no independent legal identity after marriage. Her identity was merged with that of her husband, and all her property was passed on to him.


Marital Rape Exception infringes Article 21 of the India Constitution

The freedom of a woman to withdraw consent at any moment is at the heart of her right to life and liberty, including the right to defend her bodily and mental well-being. Non-consensual sex damages this core by infringing on her dignity, physical integrity, autonomy and agency, and the ability to choose whether or not to reproduce. A woman may refuse to have sex when she is unwell, menstruating, or unable to participate in sexual activity due to a sick kid. She may decline to engage in sexual activity with her husband. Depriving someone of this right is unquestionably a violation of his right to life.[2]


Marital Rape Exception violates Articles 15 and 19(1)(a) of the Constitution

Although the Marital Rape Exception does not discriminate between different sexes, it implies discrimination between people of the same Sex-based only on their marital status, i.e., If an unmarried man has Sex with a woman without her consent, he is considered an offender.

In contrast, a married man having sex with her wife without her consent does not amount to Rape.

Marital Rape Exception also breaches Article 19(1)(a) of the Constitution since it violates the constitutional guarantees of the freedom of expression for married women, among other things. The right of a woman to proclaim her sexual agency and autonomy is included in the protection of freedom of expression.

Therefore, the Marital Rape Exception violates Fundamental rights.[3]


Busting the Assumption behind Marital Rape

The general notion that "WITH MARRIAGE COMES CONSENT."

Due to society's conventional stereotypes and patriarchy, people tend to believe marriage is a sacrament rather than a contract. Hindu mythology says the husband should be given the status of 'devta' (God) in marital life. It is also observed that the married Hindu woman of Northern and Western India keeps a fast from sunrise to moonlight and offers prayers for the well-being and longevity of their husbands. It is presumed that anything that happens in the due course of the marriage is consensual, and the husband can do whatever he wants with his wife. One major problem that acts as the source behind not getting consent is that most marriages in India are arranged and go against the woman's will. Families of girls fix marriages without asking their permission. When consent is not considered in such a complex concept as marriage, husbands feel their wives have no say when engaging in sexual activity, and consent does not matter.

The other perspective is to criminalize Marital Rape. No matter if the woman is old, single, married, or wearing certain clothes, none of these factors should be considered when deciding whether there has been Rape. Rape is Rape irrespective of all those factors. Every rapist should be punished. No matter if the woman is old, single, married, or wearing certain clothes, none of these factors should be considered when deciding whether there has been Rape. Therefore, even in marriage, consent should play a crucial role. To engage in sexual activity, a husband and wife must mutually consent to it.


Family Intervention and Nagging

When a couple gets married, their families put much pressure on them. All they ask of them is that they grow their family and continue their lineage. In Indian families, a woman is impermissible to have her reproductive autonomy.

Consequently, even if she does not want children, she is forced to have them due to pressure from her family members. This family pressure encourages the husband to engage in sexual relations with the wife and get her conceived. As a result, in situations like these, the families do not care about the woman's well-being or mental State as they are satisfied that their family line will continue even if Rape was involved.

Nevertheless, "modern-day marriage is a relationship of equals. By entering into matrimony, the woman does not submit herself to her husband or give irrevocable consent to sexual relations in all circumstances. A healthy and happy marriage is built upon mutual consent.

In modern times, non-consensual sexual relations in marriage are antithetical to what matrimony stands for, namely the relationship of equals. The right to withdraw consent at any time is essential to the woman's right to life and liberty, which entails her right to protect her physical and mental well-being.


Culture and Traditions

Usually, women are made to feel that their whole life after marriage should revolve around their husbands. The socio-cultural traditions, norms, and values have taught women that it is their responsibility to satisfy their husband's sexual needs at all times. The values, norms, and traditions of socio-cultural societies require women to satisfy their husband's sexual needs at all times.

However, the law should constantly change and evolve. If it does not, society will either stop developing, or the people will go against the law. Most countries like Australia, South Africa, Canada, etc., have changed their laws and abolished the exceptions for Marital Rape. Similarly, Section 375 of the IPC should be amended soon to protect our country's women. Repealing this law would prevent marital rapes, which would be a good start.


In RIT Foundation vs. UOI[4]

Recently on 11th May 2022, the Delhi HC, In delivering a split verdict in pleas seeking to criminalise marital Rape, Justice Rajiv Shakdher of the Delhi High Court ruled in support of repealing the marital rape exception (exception 2 of Section 375, IPC).

In contrast, Justice C Hari Shankar opposed the contention.

In defense of MRE, the following broad arguments were advanced

First, the distinction that Marital Rape Exception makes between married and unmarried women is constitutionally viable.

The question here is whether the distinction between married and unmarried couples has a reasonable connection to the aim of the central provision, which is to prevent a woman from being forced into a sexual act against her choice or permission. According to Justice, the distinction between an unmarried and a married victim is not only irrational but also blatantly unfair. Furthermore, the Doctrine of classification must eventually yield to the primary principle of protecting the aggrieved person's fundamental right to seek equality before the law.


Second, the IPC itself contains provisions that are relationship-centric.

The argument is only partially correct. One may refer to Sections 136, 212, 216, and 216A of the IPC, which broadly pertain to prosecutions for harboring deserters, offenders, escapees, and robbers/dacoits, respectively. When compared to other sections in the IPC that allow for marital–exceptions, it is clear that they protect against crimes committed outside of marriage rather than crimes done by one spouse against the other.


Third, the legislature has provided various avenues for victims to seek redressal against spousal violence.

This submission again fails to recognise that no other remedies bring the offense of Rape within its fold. Offenses under section 304B (concerning dowry death) and sections 306, 113A, and 113B cannot bring Rape under its ambit.


Fourth, the husband has a "conjugal expectation" to have sex with his wife.

The argument that the husband has a "conjugal expectation" to have sexual communion with his wife is plausible, in my opinion, as long as the expectation is not associated with an unrestricted right to have sex without the wife's consent. The law cannot direct consummation.

Fifth, while the legislature does not condone spousal sexual violence, it chooses not to label the act as Rape as it seeks to protect families, including progeny. In other words, the State has a legitimate interest in protecting the institution of marriage.

This argument ignores the reality that marriage is a union between two individuals who may or may not have familial ties. The cornerstone of the familial system is the marriage relationship between individuals. The State has no part in setting up the edifice or the structure of the family. The argument that MRE cannot be struck down to safeguard the family structure would validate the common law notion that a married woman is nothing more than a chattel who loses her sexual autonomy once she marries.


Sixth, there is a palpable and real apprehension that striking down MRE could result in the lodgement of false cases.

The claim that repealing MRE will result in the filing of bogus lawsuits is based on speculation rather than empirical evidence. According to the most recent NFHS-4 study of married women, 99 percent of sexual assaults by current and previous spouses remained unreported. As a result, the argument that the courts should refrain from striking down MRE even if it is unlawful because of the risk of fake lawsuits being filed is, in my opinion, utterly unfounded. As a result, the fear is overblown and not founded on empirical facts, which reveals the opposite.


Seventh, It would effectuate a married couple's private space if the husband is prosecuted for marital Rape. Being a closed space in the State, it would be well-nigh impossible for the State to collect evidence concerning the allegation of Rape.

If an offended husband injures or grievously injures his wife or submits her to cruelty or even sexual assault, investigators are indeed authorised to enter the couple's private area. When women's rights are violated, the barrier between private and public places is irrelevant.


Gathering evidentiary material would be difficult.

In my opinion, the difficulties confronted by an investigator in marital Rape are no different from those faced by an investigator in situations involving other offenses that occur in marital space other than Rape. The argument is weak because rape laws should also not apply to live-in couples if this proposal is accepted. The inability to prove a case should not be used to justify not criminalising a horrible crime like Rape.


The Delhi High Court is hearing a batch of petitions seeking to declare marital Rape a crime. In 2015, the RIT Foundation, All India Democratic Women's Association, and two other individuals filed PILs.

After the draconian Nirbhaya Case (2012), the Justice Verma Committee recommended criminalizing Marital Rape. There are more than 100 countries have criminalized marital Rape in the world.


Justice Rajiv Shakdher

Sexual offenses need to be called out for what they are. In my opinion, sexual assault by a husband on his wife, which falls within Section 375 of the IPC, should be recognized as Rape since that is one of how society expresses disapproval regarding the offender's conduct.

Interestingly, the prevailing culture stigmatizes the victim rather than the rapist. Consequently, I agree with Ms. Nundy that sexual assault within Section 375 of the IPC should be classified as Rape. This should also apply whether it occurs within or outside the marriage bonds.

The State's responsibilities extend beyond the space ordinarily reserved for the married couple where violence does not exist. Consequently, by exempting criminal acts such as forced sex marriage, the State unwittingly engages in unequal distribution of rights under the Constitution. Due to this, those who commit the crime, i.e., the husbands, escape the rigors of the law, while those who are victims, i.e., the wives, are not protected by the law."


Justice C Hari Shankar

While he disagrees with Justice Shakdher, Justice Harisankar has ruled that Exception 2 to Section 375 does not violate the Constitution and is based on an intelligible distinction. I understand any assumption that a woman has no choice but to have sex with her husband in a particular circumstance. Simultaneously, she does not want to feel the same level of outrage as a woman whose stranger rape is not only unjustified but also unreal.

Thus, in a situation where the husband, in such a circumstance, requests his wife, on a particular day, to have Sex, he is exercising a right vested in him by his marriage and asking her to fulfill an obligation that is, too, vested in her by her marriage. If a wife refuses and the husband has sex with her, no matter how much one may disapprove of the act, it cannot be compared to someone being ravished by a stranger. As a result, the impact on the wife in such a situation can be compared to the impact on a woman whom a stranger raped.

In any event, such a contention is purely presumptive. This aspect is significant. This aspect is critical. Tushar Mehta learned Solicitor General correctly pointed out that the impugned exception and its deletion from the statute book are issues of far-reaching societal and sociological significance, which cannot be ignored. When examining whether to retain the impugned exception in section 375 of the IPC, the perception of the vast millennia of this country should be disregarded as an illegitimate consideration.


Conclusion

Modern-day marriage is a relationship of equals. When a woman enters matrimony, she does not subordinate herself to her spouse or grant irrevocable consent to any sexual acts. Consensual sex is at the heart of a healthy and joyful marital relationship. Non- consensual sex in marriage is the antithesis of what matrimony stands for in modern times, i.e., the relationship of equals.

The right to withdraw consent at any time is a fundamental aspect of a woman's right to life and liberty. This encompasses her right to protect her physical and mental health.

BUT

In conclusion, I would like to ask you, "Has society accepted Marital Rape as a crime or not?"

The answer is No because women subjected to this heinous crime do not know that this is a type of violence. I asked my maid whether she was aware of Marital Rape. She replied, "bhaiya essa kuch bhi hota hai kya? Maa-Baap ne sikhaya jo pati bolega wo karna hoga, ghar mein sukh shanti ke liye." (To maintain peace and harmony in the house, you have to fulfil the wishes of the husband) just because he is your husband does not mean that he can indulge in sexual intercourse whenever he wants.


Suppose if the petitioner's arguments are acknowledged, the daughter born due to such an act would be raped. Even though the child was born out of wedlock and as a result of a perfectly legal sex between her parents, she would be the victim of Rape because her mother refused to engage in sex with her father when the opportunity arose.

If her mother filed charges, her father would be subject to the punishment outlined in Section 376 as a rapist.

If the petitioners' arguments were accepted, the consequences would be mind-boggling. Sex should never be merely a physical act to satisfy the senses in a lasting, healthy marriage. There is no denying that having Sex with your spouse has an emotional component. The bedroom in a marriage is a sacred space. In my opinion, a law that aims to exclude any allegations of "rape" outside the confines of such a partnership is impervious to interference.

– Justice C Hari Shankar


-- [1] (1996) 1 SCC 490 [2] In RIT Foundation vs. UOI 2022 SCC OnLine Del 1404 [3] In RIT Foundation vs. UOI 2022 SCC OnLine Del 1404 [4] 2022 SCC OnLine Del 1404



This article is written by Ayush Sharma of Vivekananda Institute of Professional Studies.

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