Introduction
Marital rape can be understood as any other form of rape with the only difference being that it is committed by a husband on his wife. Basically, it is a term used to describe sexual acts committed without a wife's consent and/or against her will by her husband.[1] Indian laws treat rape and marital rape differently to an extent that the former is criminalised and the latter is not. While the topic was discussed widely on news channels and debates as Delhi HC sat to hear petitions on the criminalisation of marital rape, several men took to social media threatening to boycott the institution of marriage if marital rape is criminalized[2]. Several men’s rights organizations claimed that “there were large-scale violations of civil liberties and human rights in the name of women's empowerment in India”.
This article answers the questions such as: what exactly does the law say, why marital rape is not penalised and whether the situation is the same across the world? Read on!
What The Law Says
Section 375 of the Indian Penal Code, 1860[3] provides that a man commits the criminal offence of rape if he engages in sexual intercourse with a woman against or without her consent, or if she is a minor i.e. under 18 years of age. However, Exception 2 to Section 375 provides that sexual intercourse by a man with his own wife is not rape if the wife is of 18 years of age or above[4]. This makes marital rape legal in India and consequently allows using physical violence or any other form of threat or engaging in sexual intercourse without the valid consent of the wife to make this happen.
The Domestic Violence Act, 2005[5], and Section 498A of IPC cover the offence of physical and mental cruelty against a woman by her husband or his family. However, the former being a civil law, can only provide protection and monetary compensation to women victims without any further punishment, and under the latter, the perpetrator has to serve a maximum punishment of three years in prison along with a fine. Moreover, the heinous crime of rape is not justified when it is put under the contours of mere ‘cruelty’.
Why Marital Rape Is Not Seen As Rape
Reasons, why India does not consider marital rape as rape, can be summarised in a few words: established norms in the patriarchal society, misogyny and misconceptions. The reasons have been discussed below in detail:
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Fear Of The Law Being Misused
One of the arguments currently prevalent against criminalising marital rape is that women will use the law against marital rape to falsely accuse their husbands. Such an argument finds its resort to various domestic violence laws being enacted for the protection of women in India such as the Protection of Women from Domestic Violence Act, the Dowry Prohibition Act and Section 498A of the IPC which are said to be misused by some women. Even the Union Government was seen supporting this view a few months ago when it submitted an affidavit[6] to the Delhi HC stating that a law criminalizing marital rape can become an “easy tool to harass the husbands”.
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The Notion Of Marital Sanctity
Justice Verma Committee which was formed after the Nirbhaya rape case[7] in 2012 recommended that marital rape be criminalized but the parliamentary standing committee on Home Affairs said that if marital rape is brought under the ambit of criminal law, it will harm the entire family system. The thought of criminalising marital rape is often related to the destruction of the sanctity of marriage. In a nutshell, India is ready to sacrifice a woman’s moral, sexual, and fundamental rights in the belief that it will preserve an institution called ‘marriage’. It is important to understand that consent must be constant irrespective of the circumstance, institution or relationship between the victim and the perpetrator[8]. Moreover, if divorce and judicial separation have not destroyed the institution of marriage, criminalizing marital rape certainly can not either.[9]
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Women Being Objectified As Husbands’ Property
As a consequence of IPC being drafted during colonial rule, the pattern of English law was followed while adding Exception 2 to Section 375 which considered a wife to be the private property and chattel of the husband. Another justification was given by William Blackstone in 1753 as he defended the common law doctrine of coverture[10] by stating that the very being or legal existence of the woman is suspended during marriage.
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Societal Beliefs And Practices
In a country like India, women are usually expected to devote themselves as dutiful wives to their husbands and a woman is presumed to have given her perpetual consent to sex once she marries a man. Consequently, this supports the belief that a husband can ‘demand’ sex from his wife at any time that suits him. All this is furthered by the stereotypes that a woman likes to be taken by force and even her no means yes.
Case Laws
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RIT Foundation v. The Union of India (2022)
On May 11, 2022, the two-judge bench of the Delhi HC gave a split verdict[11] on a batch of petitions challenging the marital rape exception (MRE) under Section 375 of the Indian Penal Code. On one hand, Justice Rajiv Shakdher observed that the classification between married and unmarried couples under MRE was unreasonable and arbitrary as it seems to convey that forced sex only outside marriage is “real rape” and not otherwise. MRE was thus found to be violative of Article 14 of the Indian Constitution. It was further observed that the fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanizing, thereby violating Article 21. MRE was also found to be violative of Articles 15 and 19(1)(a) since it triggers discrimination against women based on their marital status and violates their constitutionally guaranteed freedom of expression. Keeping all the hitherto observations in mind, it was held that MRE under Section 375 must be struck down.
On the other hand, Justice C. Hari Shankar pointed out that there is a right to expect sexual relations from both sides in marriage but no such right exists when the parties are unmarried. It was stated that there is no support available to substantiate that every act of non-consensual sex by any man with any woman is rape. Thus, MRE was held to be non-violative of Articles 14, 19(1)(a), and 21 of the Indian Constitution, and a petition challenging the same was held to be unsustainable.
Due to the HC’s split verdict, the court granted a certificate of appeal to the Supreme Court stating that substantial questions of law are involved in the matter. The matter is now pending before the SC.
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Hrishikesh Sahoo v. State of Karnataka & Ors (2022)
In this case[12], the single judge bench of the Karnataka High Court held that a man can be prosecuted for the offence of rape with his wife and that MRE cannot be absolute. It was observed that MRE leads to inequality and runs counter to Article 14 of the Indian Constitution. The HC also stated that it is for the lawmakers to ponder over the existence of such inequalities in law. However, soon after the judgment, the SC put an ad-interim stay on it, and acting on a plea by the aggrieved husband, the criminal proceedings initiated in a Bengaluru court against him were also suspended.
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X v. X (2021)
Through this case[13], the Kerala HC upheld that marital rape, although not penalised in India, is a good ground to claim divorce. It was also held that marital rape falls in the frame of physical and mental cruelty.
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X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and Anr (2022)
In this case[14], it was held that the Medical Termination of Pregnancy Act and Regulations must be interpreted to cover "marital rape". The Court held that spouses who had children due to their husbands forcing them into sexual activity would also be considered "survivors of sexual assault or rape or incest." under the Medical Termination of Pregnancy Act 1971. The judgement also laid down a slew of directions to be followed by state government authorities, such as making sure that all segments of the population are informed about reproduction in general and responsible sexual behaviour. Additionally, it must ensure that everyone in society has access to contraception in order to avoid undesired pregnancies and organise their families. Thus, this judgement, laid down by D.Y. Chandrachud, widened the ambit of the Medical Termination of Pregnancy Act vis-a-vis victims of marital rape.
Comparative Analysis With Other Countries
While marital rape is criminalised in more than 100 countries across the world, there are still more than 30 countries, including India, where it is not a crime. Below discussed are the laws relating to marital rape and punishment prescribed for the same in USA and Canada:
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USA
Marital rape in the USA is criminalized under the laws of all 50 States of the country. All the States have separate laws regarding marital rape wherein some States penalize marital rape like any other rape. In such States, fine ranges between several thousand dollars to over $50,000, and punishment with imprisonment varies between several years and life imprisonment without parole. On the contrary, some States have differentiated between rape and marital rape in their respective laws. For instance, South Carolina laws provide that a prosecution for spousal battery (rape) may not proceed unless the offending spouse's conduct was reported to law enforcement within thirty days of the event. Another State, Virginia provides for marital or personal counselling in lieu of court proceedings in some cases of marital rape. However, this option is available only if the victim agrees to it, and may only be used once.
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Canada
Marital rape is criminalised in Canada under Sections 271 and 278 of the Criminal Code of Canada[15]. In the country, sexual assault provisions apply regardless of the relationship between the victim and the accused. The law is rather progressive since it protects all persons regardless of their gender and no reconciliation is allowed. Section 278 allows legal action to be taken regardless of whether or not the spouses were living together at the time of the alleged sexual assault. The maximum punishment for sexual assault under Section 271 is 14 years if the victim is under 16 and 10 years in all other cases.
It is important to understand that not only marital rape law but every other law can be misused, for determining which and taking appropriate actions, we have the courts of justice. There is no justification for following an age-old colonial law based on patriarchal notions and even though many challenges lie ahead such as setting up criteria for proving marital rape, this must not stop the crime from being punished. People have high hopes for the Supreme Court to finally see marital rape being recognised as ‘rape’ under Indian laws, now that the matter is pending before it. In conclusion, it may be reiterated that India has still a long way to go in terms of having more gender-neutral rape laws and moving beyond the societal norms.
[1] Types of Sexual Assault, MARSHALL, Available at- https://www.marshall.edu/wcenter/sexual-assault/types-of-sexual-assault/.
[2] Seerat Chabba, India: Why are some men threatening 'marriage strike'?, DW (Jan, 27, 2022), available at- https://www.dw.com/en/india-why-are-some-men-threatening-marriage-strike/a-60574198.
[3] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860
[4] In Independent Thought v. Union of India (2017), the Supreme Court read down the exception clause to hold that a wife must not be below 18 for the immunity to operate
[5]Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005.
[6]https://drive.google.com/file/d/0B1HsQbGlNpEfLUhOOW8yZEU1bWs/view?resourcekey=0-pnLVPh4goQaB5IGGZ6qH_w
[7] Mukesh & Anr v. State for NCT of Delhi & Ors (2017) 6 SCC 1
[8] Ashmita, If Criminalising Marital Rape Destroys The Institution Of Marriage, Go Ahead!, YOUTH KI AWAAZ (May 17, 2022), https://www.youthkiawaaz.com/2022/05/split-verdict-on-marital-rape-how-it-affects-womens-rights-in-india/
[9] Independent Thought v. UOI (2017) 10 SCC 800
[10]Coverture was the legal doctrine that decreed that, upon marriage, a woman's property passed into the hands of her husband
[11] RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572.
[12]Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371.
[13] X v. X, Mat. Appeal No. 151 of 2015, decided on 30-07-2021
[14] X v. Principal Secretary, Health & Family Welfare Department, Govt. of NCT of Delhi & Anr. (2022), https://main.sci.gov.in/supremecourt/2022/21815/21815_2022_2_1501_38628_Judgement_29-Sep-2022.pd
[15] Criminal Code [Canada], C-46, 1985, available at: https://www.refworld.org/docid/4cf52bb32.html.
