Abstract
The offence of Marital rape is not recognized under Indian Criminal law. The reasons behind this are numerous and may be found in a number of Law Commission papers, parliamentary discussions, and judicial rulings. The Part I of this Research paper deals with Introduction. Part II analyses what does Indian Law say on Marital rape. Part III of this paper analyses the history to criminalize Marital Rape in India. Part IV analyses Delhi High Court verdict on Criminalization of Marital rape in Pleas challenging Exception to 375 of IPC and how this judgement has triggered a flow of debates around consent to sex with a spouse and ponied out the idea that the rape should be made gender Neutral. Lastly, concluded with there is a need to make changes in the definition of rape.
INTRODUCTION
The term "marital rape" refers to a sexual activity carried out by the husband without the consent of his wife. Although the act need not be violent, the main characteristic of marital or spousal rape is the absence of consent during sexual activity with one's spouse.
Since the beginning of time, marriages between people from other cultures have frequently been considered as a way to bear children without necessarily requiring agreement. Therefore, in many traditions and cultures, consenting to have sex is not considered to be sexual violence.
Most of the time, some husbands take advantage of their wives sexually to assert their power and authority. The essential fundamental rights of women in our nation are being violated by this coercive conduct. By raping the wife and endangering her life, the fundamental right to life is violated.
When the husband disregards the personal space of the wife and disregards her wishes, he is infringing on her right to privacy. The right to equality and the right to life are respectively stated in Articles 14 and 21 of the Indian Constitution are violated by marital rape, as is the right to privacy. The Puttaswamy decision[1] made it very evident that every person's fundamental right to privacy is protected by the Indian Constitution, namely article 21 and Part III as a whole. So why is it okay for the husband to violate the right to privacy if it is a fundamental right?
Finally, when marital rape is not recognized as a form of rape, the "right to equality" is infringed. This issue has reached its pinnacle in India and has to be treated as an offense with severe penalties. Therefore, it is crucial that India criminalize marital rape.
Although many nations have come to view marital rape as a kind of sexual violence over the years, traditionally speaking, sexual relations within marriage were seen as a spouse's right. The prevalence of marital rape is similarly widespread across all nations.
Marital rape was illegal in 150 nations as of 2019, with the Soviet Union being one of the first to do so in 1922. In nations including the US, the UK, and Canada, it is a criminal offense. However, India, on the other hand, is still being contested as being unconstitutional.
India is one of the thirty-two nations where female cannot prosecute against their husband for having nonconsensual sex.
Marital rape has always been a highly complicated issue in India, where numerous laws and court rulings have been handed down over the years yet not amended. A husband cannot be convicted for committing rape with his legitimate wife. The courts in India have received several requests to make marital rape an offence, but the majority of these cases have been either dropped or dragged out for years without producing a conclusive judgment.
INDIAN LAW ON MARITAL RAPE
Rape is an offence defined under Section 375 of the Indian Penal Code. Rape is defined as "sexual activity with a woman without her consent, against her will, by coercive power, misdirection, or deception, or at a period when she has been intoxicated or duped, or is of mentally unsound, and in any case if she is a minor that is below the age of 18"
However, the section rules out marital rape (Exception 2 of Section 375). "Sexual relations or sexual intercourse by a male partner with his own wife could not be considered rape if his wife is not a minor i.e., under the age of eighteen." This debarring primarily grants a "husband" marital authority to have sex with his "wife" in a consensual or non-consensual manner with legal permission. Thus, non-consensual sexual intercourse or sexual acts by a man with his own wife, the wife being above fifteen years of age, is excluded from the definition of rape under the IPC.
Before 2017, a girl between the ages of 15 and 18 was not even shielded by anti-rape legislation if her husband had sex with her wife without her consent. The Court raised the consent age for "marital" sexual activity to eighteen years old. In the Independent Thought Case[2], this judgement was rendered. The Court further ruled that the Exception breaches the rights of the girl child and is unreasonable, capricious, and erratic and needs to be struck down on certain grounds that it does not protect the girl child below 18 years of age.
Marital rape protection is recognised in a few post-colonial common law nations. It is founded on two major assumptions:
⮚ When a woman marries, she willingly gives her husband her consent, which is irrevocable. The assumption that a woman is a man's property is the foundation of this legal doctrine from the colonial era.
⮚ This is the idea that a woman has a moral need to fulfil her sexual obligations in a marriage because impregnation is the main purpose of matrimony. The phrase means that a woman cannot decline sexual closeness in a marriage only because her spouse has a good reason to want it.
LEGAL STANDPOINT
One of the proposals made by the Justice JS Verma Committee, which was tasked with coming up with changes to India's rape laws in the wake of the horrible gangrape and murder of Nirbhaya, was to eliminate the marital rape exception. The Verma Committee recommended changing the rules regarding marital rape, arguing that marriage does not constitute "irrevocable consent to sexual intercourse."[3] A parliamentary committee, nevertheless, rejected the notion in 2013.[4]
The Exception should be removed, according to the Committee on Amendments to Criminal Law's 2013 report. The Law Commission of India, however, declined to follow the advice in its 172nd report. This "may amount to inappropriate interference with the marital relationship"[5] the Commission said in rejecting it. The recommendation of the committee was swept under the Carpet.
A lady's petition to the Supreme Court in 2015 was rejected on the grounds that the law wouldn't alter for just one woman. The court noted in Arnesh Kumar v. State of Bihar[6] that criminalising marital rape will result in the breakdown of social and family systems amidst the already discriminatory laws.
Maneka Gandhi, the union minister for women and child development, sparked controversy in 2016 when she asserted in Parliament that a legislation against marital rape was impossible since marriage is a "sacrament."
The topic of marital rape has recently come up for discussion in India. The Gujarat High Court opened the door for discussion on the elimination of the exception of Marital Rape following the Independent Thought Case[7] in 2018.
However, a 2013 amendment recognised rape of girls between the ages of 12 and 15 as a crime that was punishable by law, but it did not take into account the grave harm done to victims above the given age in marriage.
The Court disapproved the 'implied consent' in marriage in Nimeshbhai Bharatbhai Desai v. State of Gujarat[8]. Supreme Court has ruled that "marital rape is not a privilege of husband in a marital relationship" and should be criminalised. The Court also said that "dehumanized treatment of wife will not be acceptable" by the state government.
In the year 2021, the Kerala High Court[9] declared "marital rape as a valid reason for divorce." The Court ruled that performing sexual acts on a woman against her will or consent while treating her body as something owed to the husband amounts to marital rape.
RIT FOUNDATION v. UOI[10]
Final arguments in a case that started with a petition from the RIT Foundation in 2015 have been heard by the high court, which has heard arguments that the petition violates Articles 14 and 21 of the Constitution of India, that removing it would jeopardize the "Institution of marriage," and that it should be rejected by two court-appointed experts. The case largely concerns marriage's right to dignity, privacy, and bodily autonomy. Due to the petitioners' contention that it discriminated against married women who are sexually abused by their husbands, the constitutionality of the marital rape exception under Section 375 of the IPC (rape) was challenged.
In May 2022, a 2-judge Bench of the Delhi HC gave a split judgement verdict regarding criminalisation of marital rape and granted permission to the parties to file an appeal before the SC. Since the IPC was enacted 162 years ago, Justice Rajiv Shakdher, who presided over the High Court Bench, has advocated for the removal of the marital rape exception on the grounds that it is "unconstitutional" and that it would be "tragic" if a married woman's plea for justice were not answered. Justice Shankar, however, has argued that the exception is not "unconstitutional" because it is based on an intelligible differentia and it does not violate Article 14, 19 and 21.[11]
● Violative of equality clause and Article 21 of Constitution of India- The judge came to the conclusion that the exception to marital rape violates Article 21 of the Constitution while maintaining that it violates the equality provision.
● Freedom of expression guarantees right of woman to declare sexual agency- According to the judgement, the exception also breaches Article 19(1)(a) of the Constitution because it infringes on the assurance that married women who are citizens of this nation have regarding their freedom of expression, among other things.
● The woman’s right to claim her sexual agency and autonomy is protected by the protection of freedom of expression- Justice Shakdher continued, the fact that women who operate as sex workers or who are divorced from their spouses are given the same legal rights as women who are married but not living together makes the existence of the marital rape exception on the legislation egregiously inappropriate.
Striking down Marital Rape exception won’t result in a new Offence-
Supporters of the exception to marital rape have argued that it cannot be abolished because doing so will create a new offence, namely the rape of a woman by a husband, which courts are unable to accomplish. Alternatively, the section would have to be completely invalidated by the court, which is obviously not conceivable.
Judge Shakdher of the Delhi HC, who decided in favor of overturning the exception of marital rape, noted that doing so would not create a new offence. It's merely the elimination of the immunity granted to one class of rapists.
The Supreme Court of India clearly said that this was not the formation of a new offense when it ruled in the Independent Thought case in 2017 that it cannot apply if the wife is between the ages of 15 and 18.[12]
Justice Shakdher provided a list of five general arguments that the argument that the exception 2 to Sec 375 of IPC will create a new offense was misguided-
Firstly, Section 375 of the Indian Penal Code already defines rape as an offence, and that any sexual conduct listed in Clauses (a) to (d) constitutes rape if it fits into one of the seven conditions mentioned in the aforementioned section.
Secondly, if the crime's ingredients had altered, a new crime or offense may have resulted. However, "No one claims that the elements of the offense have altered," and if the exception is overturned, the husband would come under the ambit of the offense.
Thirdly, the filling in the blanks, or excising portions of an offending provision contained in a legislation is a valid judicial instrument used by courts for detaching what is seen to be unconstitutional and maintaining that which is deemed to be lawful.
Fourthly, the exclusion for marital rape aims to ring-fence the perpetrator based on their marital status.
Fifthly, the criminal code is act- or omission-centric and, in most circumstances, is unconcerned with the identity of the crime's perpetrator. The fact that relationships can come into play in some situations, does not change the core tenet of criminal laws—those crimes are punishable regardless of the relationship between the offender and the victim.
Accordingly, the contested provisions—Exception 2 to Sections 375 and 376B of the IPC—violate Articles 14, 15, 19(1)(a), and 21 of the Constitution, they were ruled unconstitutional.
Rape should be made Gender Neutral Offence-
There is a need of the hour to make the gender-Neutral Rape laws for the preservation of marriage institution. The courts have acknowledged that Section 375 of the IPC has been misused, hence it is necessary to implement gender neutrality in the area of sexual assault. Therefore, if the Exception to Marital Rape is overturned, it will only exacerbate the injustice and injustices already present. Additionally, a gender-neutral response to these problems should be in line with calls for gender equity.
CONCLUSION
The consent of both the husband and wife is the concept that needs to be accepted in today's society. If a woman does not want to engage in sexual activity, a man should understand that NO MEANS NO and not view it as a challenge to compel her. In India, marital rape is still not considered an offence.
It is important to realize that marital rape is a crime that the government must recognize and that every victim should file a report.
A husband who rapes his wife ought to face the same harsh penalties as other rapists. He doesn't have the right to conduct such a terrible crime just because they have a marriage certificate. By assisting these ladies, society may act humanely in these circumstances.
There is a need to make changes in the definition of rape. Regardless of whether they are married or single, men and women must be treated equally under Indian law. Marital rape is a crime that affects right to privacy of woman rather than just being something that happens behind an iron curtain. By satisfying the sexual desires of the partner you are married to, marriage does not entail consenting to the torment of one's own body and mind.
Can the State actually breach a person's home's privacy walls? "Yes" is the answer to this. Why is this terrible and horrible offense excluded from the legislative purview when the wall has previously been breached in circumstances of cruelty, divorce, and dowry demand? Why not intervene to defend a woman's right to her body if a state can serve as an arbitrator in the termination of a marriage?
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[1] Justice K.S. Puttaswamy vs. Union of India, (2017) 10 SCC 1.
[2] Independent Thought vs. Union of India, (2013) 382 SCC (2017).
[3] Justice J.S. Verma, “Report to the Committee on Amendments to Criminal Law” (Jan. 23, 2013).
[4] Parliament of India, “167th Report The Criminal law Amendment Bill, 2012” (26th Feb., 2013).
[5] Law Commission of India, “172nd Report on Review of Rape Laws”, (Mar., 2000).
[6] Arnesh Kumar v. State of Bihar, 2014 8 SCC 273.
[7] Independent Thought Case, supra note 2.
[8] 2018 SCC OnLine Guj 732.
[9] X v. X, Mat. Appeal No. 151 of 2015, decided on 30-07-2021.
[10] RIT Foundation v. UOI, 2022 (Del) 433.
[11] “Criminalisation of marital rape | Appeal filed in Supreme Court against Delhi High Court's split verdict”, THE HINDU, May 17, 2022.
[12] Vakasha Sachdev, “Explained: Why Marital Rape Is Not a Crime in India (Yet)”, THE QUINT, May 11, 2022.
This article is written by Parul Sukhariya of Rajiv Gandhi National University of Law, Punjab.