Abstract
“No one can make you feel inferior without your consent.” – Eleanor Roosevelt.
Marriage in India is considered a sacred union between two people and is also recognized as a legal union between two people in a personal relationship having legal rights to indulge in sexual activities. Under Hindu law, marriage is not treated as a contract whereas under Islamic law, marriage is treated as a contract which has all essentials of a valid contract : of er, acceptance and consideration. Whether the marriage is of a contractual nature or of a non-contractual nature both are given the very same legal rights regarding sexual intercourse; though , unfortunately partners ignore the fact that it should be consensual and not forceful, when the sex is without consent, it`s Rape. Almost every crime against women is penalized under the Indian Penal Code, 1860 excluding one heinous crime of all i.e. Marital Rape. Rape is defined under section 375 of the Indian Penal Code, 1860 but it has one exception to it : Sexual intercourse by a man with his own wife is not rape.Now this exception clearly tells that Marital rape is still not criminalized in Indian law system. This paper talks about Marital rape and it`s status in India and in other countries.
Keywords : Contract, Rape, Marital Rape, Indian Penal Code.
1. Introduction
“Consent” is the agreement of two people to engage in sexual activity. Consent should be communicated clearly and freely. Individuals who are underage, intoxicated or incapacitated by drugs or alcohol, or asleep or unconscious cannot give consent. If someone agrees to participate in an activity under threat or intimidation, that is not considered consent because it was not given freely. Marital rape is “forceful” sexual intercourse with one`s spouse without the other spouse`s consent. After the marriage, the husband believes that his wife`s body is his property and he uses her as an object who cannot have a basic right to her own body. The patriarchal society believes that marriage is a perpetual consent given by the wife to have sexual intercourse anytime her husband wishes. This causes severe mental health issues, depression, and anxiety among women
who became a victim to it. Rape[1] is defined under section 375 of the Indian Penal Code,1860.
A man is said to commit rape when he has sexual intercourse with her against her will, without her consent,in fear of death,when she believes the man to be her husband,when the consent is given out of being intoxicated or of her being unsound mind,with or without consent,when she is under
sixteen years of age. Exception to it is “ sexual intercourse by a man with his own wife is not rape unless she is under 15 years old”. Almost every country in the world recognizes Marital rape as a crime but unfortunately Marital rape is not criminalized in India yet.
2.Status of Marital Rape in India and other countries
Marital rape is harmful to the institution of marriage, especially for women, who must spend their entire lives with the perpetrator, and because the law does not recognize it as a crime, many cases go unreported. According to the National Crime Records Bureau (NCRB), 'crime in India' in 2019 has increased at such a rapid pace that 70% of women in India are victims of domestic violence. According to National Family Health Survey (NFHS) 2015-16 data, approximately 99.1% of sexual violence cases go unreported, and the average Indian woman is 17 times more vulnerable2.She is more likely than any other woman to face sexual violence from her husband. Although Child Marriage Act, 2006 3prohibits the marriage of a minor there are still states like Rajasthan, Haryana and Gujarat that treat child marriages as their customs and norms. As a result girls are disproportionately more affected and face sexual exploitation by the husband. A forceful sexual relationship in a marriage robs a woman of her bodily autonomy; it violates Articles 14, 19(1)(a), and 21 of the Indian Constitution, which every citizen of our country is entitled to4. This provision in the Indian Penal Code was drafted when India was a British colony, but British law itself recognizes forceful sexual acts in a marriage as an offence, but we are still debating whether marital rape should be criminalized or not. Under the first version of the rules, the marital rape exception was applicable to women over 10 years of age which was raised to 15 in 1940. The idea of implied consent comes from the Doctrine of Hale, given by Matthew Hale, the British Chief Justice, in 1736. It states that the husband cannot be guilty of rape, since “by their mutual matrimonial consent and contract the wife has given up herself in this kind to the husband”.According Doctrine of Coverture, a woman has no individual legal identity after marriage, this doctrine although not recognized by the constitution, holds that a woman loses her legal rights and identity with marriage, is violative of her fundamental rights.5 Previously, marital rape was not considered a crime anywhere in the world, but as time passed, some countries realized that even after marriage, it should be the woman who has control over her body, not her husband, and so, in order to fill the gap in their country's law, they either passed new laws or amended existing laws to make marital rape a crime. As of today, nearly 150 countries around the world recognize marital rape as a crime, including the United Kingdom, the United States, Australia, Canada, Germany, France, and Italy, and impose harsh penalties on the perpetrator. In the United Kingdom, the maximum legal punishment for a marital rape offender is life imprisonment, whereas in India, we have yet to pass such legislation. According to Amnestry International data, 77 out of 185 (42%) countries criminalise marital rape through legislation. The United Nations has urged countries to end marital rapes by closing loopholes, saying that “ the home is one of the most dangerous places for women”.
3. Case laws regarding marital rapes
Independent Thought vs Union of India, 2017. [6]
The petition is filed by an NGO named as Independent Thought and it challenged the second exception to sec 375 of IPC,1860. Despite the fact that Section 375 of the Indian Penal Code, 1860 (the IPC) takes a pessimistic view of the case, the court decided that sexual or physical intercourse with a female under the age of 18 is constituted rape, whether she is engaged or not. The artificial distinction violates the spirit of Articles 15(3) and 21 of the Constitution. The Prohibition of Child Marriage Act (PCMA) was passed in 2006 as the first step in this direction, but no subsequent amendments to Section 375 of the Indian Penal Code (IPC) to legalize marital rape of a female child were made. If a married girl between the ages of 15 and 18 is sexually assaulted or raped by her partner, he may be charged with "aggravated penetrative sexual assault" under the Protection of Children from Sexual Offenses (POCSO) Act of 2012, but not with rape under the IPC because such an assault is not considered rape under the IPC. The main issue here was : Whether intercourse between a man and his wife being a girl between 15 to 18 yrs is a rape? The issue is limited but is of pertinent importance as India still refuses to recognize Marital Rapes. The consent under almost most statues in India is 18 yrs of age. In the opinion of two judge bench of the supreme court “sexual intercourse with a girl below 18 yr of age is rape regardless of whether she is married or not. The exception 2 of Sc 375 of 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 is definitely not in the best interest of the girl child”.
The supreme court also observed that the exception is contrary to article 15(3) and article 21 of the constitution. The supreme court also said that the exception turns a blind eye to the trafficking of young girl children and it must be prohibited as it is a social evil. The court finally cleared the disparity between the POCSO Act and Section 375. The SC read down the second exception Sc 375 IPC7.
Legal Implication of the Judgement
● The judgement is pioneer in the protection of girl child from sexual abuse at the hands of her husband even if she is married.
● He will be arrested on the charge of rape if a girl files apolice complaint. ● Will curb trafficking of girl child in the name of marriage.
● Will be helpful in declaring the child marriage void-ab-initio.
● Establishes the nexus between the laws that are enacted to protect the girl child.
Bodhisattwa Gautam v. Subhra Chakraborty [8], Justice Ahmad said that “cruel act, in turn, destroys the entire psychology of a woman and pushes her into deep emotional crises”, it is traumatizing for the women when they have to spend their entire life with the perpetrator. However, there are provisions under Section 3(a) of the Protection of Women from Domestic Violence Act, 2005, that states that “harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse”, this recognizes sexual, physical, and economic abuse as domestic violence and not specifically as "rape" in a marriage, and the other problem with this provision is that the punishment for this offence is more civil in nature, such as restraining and protective orders, compensation, and monetary gain is entitled to the victim, but it does not provide for the period of imprisonment for the offense.
In State of Maharashtra vs. Madhukar Narayan Mardikar, [9] the Supreme Court discussed the right to privacy over one's body. It was decided in this case that a prostitute had the right to refuse sexual intercourse. What is unfortunate is that all stranger rapes have been criminalized, and all females, except wives, have been granted the right to privacy over their bodies, implying the right to refuse sexual intercourse and withhold consent.
Kerala High Court on Marital Rape
A two-judge bench of the Kerala High Court held marital rape a ground of divorce. The court observed that treating a wife's body as something owned by the husband and engaging in sexual acts against her will amounts to "marital rape."
The Bench, comprising Justices A. Muhamed Mustaque and Kauser Edappagath, observed that just because the law did not recognize marital rape under penal law did not mean that it prevents the court from recognizing it as a form of cruelty in order to grant divorce.The woman alleged she faced cruelty in the form of “perversion and physical harassment.” The woman had said that even during her pregnancy, the man had abused her. “She also deposed that the appellant (her husband) committed forceful sex when she was sick and bedridden. She also deposed that she was subjected to the worst form of sexual perversion and unnatural sex against her will. The respondent (woman) deposed that the appellant even did not spare her for sex even on the day the appellant (man)’s mother expired. She also stated that the appellant (her husband) forced her to have sex in front of their daughter,” the Kerala High Court noted in its order. Hence,Marital rape was a valid ground for divorce.[10]
This action by the Kerala High Court is highly commendable and has given hope to strict laws against this heinous crime. This will also encourage women who are experiencing mental and physical trauma but are not speaking up.
Delhi High Court on Marital Rape
[11] A division bench of Delhi High Court recently delivered a split verdict on whether the exception to section 375 of IPC i.e., marital rape is unconstitutional. This exception States that sexual acts by a man with his adult wife are not rape.The exception to Section 375 of the Indian Penal Code (IPC) that says sexual intercourse by a man with his wife aged 18 or above is not rape even if it is without her consent was declared unconstitutional by Justice Rajiv Shakdher, who presided over the two-judge Bench. However, Justice C. Hari Shankar rejected the petition to criminalize marital rape, stating that any change in the law must be carried out by the legislature because the issue demands consideration of various factors, including social, cultural, and legal. The split verdict could not give any solution , the issue will now go to the Supreme Court.
4. Arguments for and against the criminalizing Marital Rape:
● False Charges:
The people who are against criminalizing Marital Rape give the argument that women might misuse the law and falsely charge their husbands of marital law or threaten them in order to make them do things they want. It is also claimed that such false cases will be numerous, putting pressure on the judiciary and, as a result, justice for many important cases will be delayed. It is a very ambiguous statement, considering that not every case of forcible intercourse in marriage is false, and some cases are genuine, so why should such victims not be given justice? It is true that consent in marital rape cases is difficult to prove in court, but ignoring such an important issue for that reason does not seem right; instead, the legislature should establish a standard for deciding consent in such cases. Dilip Pandey and Ors VS the state of Chattisgarh [12] In August 2021, Justice NK Chandravanshi ( the Chattisgarh High Court) absolved a man of charges for allegedly raping his wife. The judge referred to Section 375 and stated that "in this case, the complainant is the legally wedded wife; therefore, sexual intercourse or any sexual act with her by the husband would not constitute an offence of rape, even if it was by force or against her will."
This case is significant because it shows how Section 375, like many other flawed laws, continues to govern how much control we have over our bodies as women. In Indian society, consent is given the least weight. In fact, it is not only a case of ignoring the wife's consent but also of establishing that the wife has no agency in the institute of marriage.
#Marriagestrike [13] The hashtag marriage strikes started trending on Twitter when on January 19, the Union Government notified the courts to speed up the process. The hashtag was created by men who believed that criminalizing marital rape would benefit women by allowing them to file false cases.
These men used the hashtag #MarriageStrike to protest the government's proposed decision to criminalize marital rape. According to the number of tweets using the hashtag Marriage Strike, it is not surprising that the majority of tweets by men reflect a sense of fear and deep insecurity. The assumption that there is a possibility that all women will always file false cases stems from misogyny and a deep-seated fear of men losing their power as a patriarch in a household.
● The sanctity of the Marriage Institution
Marriage is considered a sacred union between two people of different genders. In earlier times marriage meant entering into an institution of sexual intercourse and therefore it is believed that once two persons are married it is also a perpetual consent to have sexual intercourse. Therefore if legislation is bought in favor of criminalizing marital rape it would be considered that the law is giving the judiciary the power to control people's personal lives.
Consent plays a vital role in any marriage for any kind of relationship including the Institution of marriage and if the spouse violates The right to consent of their partners in such case the sanctity of the marriage is already spoiled. As a person, everyone must have a right on their own body and they should be given a personal space where denying or refusing to have sex should be respected.
● Protection of Women from Domestic Violence Act, 2005.
[14]Some people argue that we already have Section 3(a) of the Protection of Women from Domestic Violence Act. The Domestic Violence Act of 2005 defines domestic violence as including sexual abuse, they argue that there is no need for a separate law criminalizing marital rape because this Section already does so. However, because this Act only imposes civil liability on the accused, they can get away with paying compensation. Sexual abuse is a criminal offense under Section 3(a), and an appropriate punishment must be provided because such an act harms women's mental health.
5. Conclusion
India intends to empower women and give them equal rights as men of our country but when it comes to marital rapes, the right of married women, and their dignity is neglected. The only thing that`s preventing India to become a State party to International Human Rights instruments is exception 2 of section 375, it`s indeed a shortcoming in rape law. The reason behind the existence of the marital law exception is deeply rooted and governed by patriarchal social norms, which supports the perception that the husband owns his wife`s body. [15]We believe until legislators and society don't recognize women's individual rights within marriage, marital rape will not be criminalized or punished. Its high time for India to bring legislations that recognize women`s individual rights within marriage and criminalize the marital rapes. In Western countries, activists have used the framework of individual rights to challenge cultural assumptions about marital relationships. In India, where cultural assumptions prevent communities and even women's organizations from discussing the evil of marital rape, the individual rights paradigm may play a similar role. Marital rape is not fully criminalized in India, instead, these have been made a valid ground for divorce which became a ray of hope for stricter laws. Marital rape could be more traumatizing for the woman than non-marital rape since they`ve to live with the predator their whole life. Looking at the seriousness of the issue, there`s more need to criminalize the marital rape. Marital rape is a huge stigma over one of our most organic and vibrant fundamental rights, the right to live with dignity, which is enshrined in Article 21 of our Indian Constitution. India must repeal the marital rape exception and thus criminalize marital rape.
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1] Sc 375 & 376 0f IPC,1860.
2] https://www.drishtiias.com/printpdf/marital-rape-in-india
3] Sc 3 Child Marriage Act, 2006.
4] Article 14, 19 (1) (a),21 of the Indian Constitution.
6] (2017),10 SCC 800
7] legalserviceindia.com/legal/article-6315-independent-thought-vs-union-of-india-2017-10-scc-800.html
8] 1996 SCC (1) 490
9] AIR 1991 SC 207
10] https://www.thenewsminute.com/article/landmark-judgment-kerala-hc-recognises-marital-rape-ground-di vorce-153556
11] https://www.thehindu.com/news/cities/Delhi/delhi-high-court-delivers-split-verdict-on-marital-rape/article6 5403832.ece
12] 23 August, 2021.
13] https://newint.org/features/2022/04/04/view-india
14] Sc 3(a) of Protection of Women from Domestic Violence Act.
15] Doctrine of Hale & Doctrine of Coverture.
This article is written by Divya Moolchandani of Classic College of Law, Bareilly.