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A CRIME DE FACTO NOT YET DE JURE

Author: Md. Zeeshan Ahmad, IV year of B.A.,LL.B.(Hons.) from Faculty of Law, Jamia Millia Islamia University.


INTRODUCTION

The word ‘rape’ finds its root in the term ‘rapio’, meaning thereby, to seize. Rape is, therefore, forcible seizure, or the ravishment of a female without her consent, by force, fear, or fraud. Rape per se is an offence against women. It involves the violation of the bodily integrity of women along with mental and emotional imbalance. It causes devastating physical and psychological trauma to women. According to data released by National Crime Records Bureau (NCRB), 93.1% of total rape cases recorded have perpetrators that are no stranger to the victim. Victims know them before the offence. They could be relatives, friends, neighbours etc.


SOCIOLOGICAL AND STRUCTURAL CAUSE OF RAPE

Sociological explanations of rape fall into cultural and structural categories similar to those presented earlier for sexual harassment. Various “rape myths” in our culture support the absurd notion that women somehow enjoy being raped, want to be raped, or are “asking for it”. A related cultural belief is that women somehow ask or deserve to be raped by the way they dress or behave.


Structural explanations of rape emphasize the power differences between women and men in the societal structure. In male-dominated societies, rape and other violence against women is a likely outcome, as they allow men to demonstrate and maintain their power over women. The case of marital rape might come under this head. Marital rape has been existed for a long in society because of patriarchy and male chauvinism. The difference in power exercised by men and women is quite large in a patriarchal society. In most cases, women do not even know that their husband is wronging them. They accept it as their fate or in some cases; they consider it as their duty to present their body as an object of pleasure to their husband. The very idea of this evil being an exception to rape proves that society and law treat women as the chattel of husbands. This power structure considers the husband as the master of the wife exercising power over her. The exception of marital rape is in furtherance to maintain that power structure and male superiority.


OFFENCE OF RAPE UNDER INDIAN PENAL CODE (IPC)

Section 375 of IPC defines rape. A man is said to commit rape on women if he had sexual intercourse with that woman against her will or consent. Even if there is consent but same, has been obtained by putting her or some other person in which she is interested in fear of death or hurt, or by fraud, or due to unsoundness of mind, or by intoxication, it will amount to rape. Rape will be constituted if the woman is less than 18 years of age irrespective of whether there is consent or not. Women under 18 years of age are not considered capable of giving consent, as they may not have the mental capacity to comprehend the consequences of their consent.


Section 375 provides for two exceptions

Exception 1 – A medical procedure or intervention shall not constitute rape.

Exception 2 – Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.

This essay will be focusing on the second exception, that is, non-consensual intercourse with the wife in the institution of marriage, which is termed as marital rape.


MARITAL RAPE - AN EXCEPTION TO RAPE

Non-consensual intercourse with a woman constitutes the offence of rape. Nevertheless, when the same act is committed within the institution of marriage, then it does not constitute any offence (only if the wife is not less than fifteen years of age). Perpetrators of such non-consensual intercourse, that is, her husband, enjoys immunity from any form of prosecution. This is termed marital rape. Rape in marriage is a serious and prevalent form of violence against women.


The root of marital rape is an exception to rape lies in the patriarchy. The notion of male superiority has, across societies enabled forceful sex with wives against their will or consent. Women were considered as the chattel of men and that they are unable to decide for themselves. Upon marriage wife automatically hands over her legal person to the husband and consents to all sexual acts. Marriage brought with it an ‘implied consent’ to not refuse any sexual act of the husband.


REMEDY AVAILABLE AS OF NOW AGAINST SEXUAL ABUSE IN MARRIAGE

In 2005, the Protection of Women from Domestic Violence Act (PWDVA) was passed to tackle the issue of Domestic Violence. The act is civilly aimed at providing compensation and support to the women who are the victims of domestic violence. It does not aim to penalize perpetrators primarily. The definition of domestic violence included various forms of abuse namely; sexual, physical, verbal-emotional and economic. It explains “sexual abuse” as any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman. Marital rape might come under the purview of sexual abuse as defined in the act. As the act is civil, concerned magistrates are not entitled to initiate a criminal proceeding against the perpetrator. Instead, a civil remedy is provided to victim women in the form of Protection orders or Residence orders or through any other means as provided in the act.


Under IPC, section 498A which deals with ‘cruelty’ by husband or relatives of husband might be of some help. It defines cruelty as-

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or


(b) Harassment of the woman where such harassment is intending to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or person related to her to meet such demand.


Complaints of sexual abuse by the husband may be filed under section 498A but it is quite natural that the marital rape exception will weaken the case. Both seem to remain at loggerhead with each other. On one hand, 498A aims to protect married women from cruelty by husbands or relatives of the husband. On the other hand, the marital rape exception provides impunity to the husband, to commit excesses on women.


MARITAL RAPE & THE INDIAN CONSTITUTION

1. ON THE TOUCHSTONE OF ARTICLE 14

Article 14 of the Constitution of India provides for equality before the law and equal protection of laws within the territory of India. Equality before the law and equal protection of laws are two different concepts. Different persons with varying backdrops cannot be provided equal protection of laws unless they are treated differently. Article 14 contemplates that like should be treated like and unlike should be treated unlike. Thus, equal protection of laws facilitates classification between groups but that should not be arbitrary or unreasonable.


In Anwar Ali Sarkar v. State of West Bengal, it was held that the classification must be based on an intelligible differentia, which distinguishes those that are grouped from others, and this differentia must have rational nexus with the object sought to be achieved by law. In Maneka Gandhi v. Union of India, it was held that Article 14 strikes arbitrariness in state action and ensures fairness and equality of treatment. Similarly, In Ajay Hasia v. Khalid Mujib it was held that whenever there is arbitrariness in state action, Article 14 immediately springs into action and strikes down such state action. This principle has been upheld in the catena of other judgments as well. However, the gist remains the same. There should not be any arbitrariness in state action as it is antithetical to the principle of equality.


Now, let us examine the marital rape exception on the touchstone of this principle. The objective of section 375 of IPC is to protect women from forceful sex against their will or consent. The state is imposing a duty on itself to safeguard the bodily autonomy of women. The exception of marital rape under section 375 classifies women as married and unmarried. While State considers its duty to protect women from the offence of rape, it does not consider it necessary to protect women from forceful sex by husband upon marriage. This classification is based upon the reasoning that marriage provides ‘implied consent’ for sexual relationships with women and upon marriage; her consent in the matter of sexual relationship is immaterial. This is sheer prejudice giving preferential treatment to men.


According to Black’s law dictionary ‘Any act founded on prejudice or preference, rather than on reasons or facts, is arbitrary’. This classification is arbitrary as it is neither based upon any intelligible differentia nor does it have any rational nexus with the objective of section 375. The classification is based upon prejudice & preference. Thus, the exception of marital rape violates the tenets of Article 14.


2. ON THE TOUCHSTONE OF ARTICLE 21

Article 21 of the Constitution of India provides for the right to life and personal liberty. This article had been given such a vast interpretation by the Supreme Court that it has become almost an organic part of the Constitution. It has become an ever-growing field. Right to life has been interpreted to mean the right to food, shelter, privacy, human dignity, good health etc.


Supreme Court in numerous cases such as Kharak Singh v. State of Uttar Pradesh, Hinch Lal Tiwari v. Kamala Devi, Olga Tellis v. Bombay Municipal Corporation etc. has held that the right to life includes in itself the right to live with human dignity and all that goes along with it. Right to life does not mean mere animal existence. Dignity is the core, which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. The enjoyment of quality life by the people is the essence of guaranteed rights under Article 21 of the Constitution. The right to live with human dignity is the most important facet of the right to life, which recognizes the autonomy of the individual.


The offence of rape violates the right to life as it interferes with the bodily autonomy of women against their will. Thus Marital rape exception stands contrary to the right to life. The right to bodily self-determination is inherent in the framework of the Right to life. The right to self-determination is based on the belief that an individual is the best judge to decide the matter, which is closely associated with his/her body. Consent to a sexual relationship is the most intimate and personal choice which a woman can take regarding her body. This right should be reserved exclusively for her without any encroachment. However, the exception of marital rape suspends this right to bodily self-determination, which in turn violates the right to life.


The Supreme Court in various decisions has held that the right to good health is inherent in the right to life under Article 21 of the Constitution. In State of Punjab v. Mohinder Singh Chawla, the Supreme Court reaffirmed that the right to good health is fundamental to the right to life and the state had a Constitutional obligation to fulfil it. The exemption of marital rape violates the right to good health and in turn right to life as it brings to the victim physical and psychological harm. Marital rape can also bring to women sexually transmitted diseases.


The Supreme Court in a series of cases has decided the right to privacy as inherited in right to life under Article 21. In R. Rajagopal v. State of Tamil Nadu, it was held that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21.


Privacy ensures the fulfilment of dignity and is a core value, which the protection of life and liberty is intended to achieve. Privacy is the ultimate expression of the sanctity of the individual. It safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. In the landmark judgement of Justice Puttaswamy v. Union of India, it was held that the right to privacy is a fundamental right under Article 21. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation and sexual orientation. It connotes in itself the right to let alone. It is a right, which protects the inner sphere of the individuals from interferences from both state and non-state actors and allows the individual to make autonomous life choices.


The exemption of marital rape violates the right to privacy of women as it involves bodily intrusion without her will or consent. Marital rape degrades the sanctity of women. It puts on hold the right of women to be let alone. The power to seclude oneself and keep others away from intruding in any way is essential to privacy. Thus, marital rape violates the right to privacy, which in turn violates the right to life under Article 21 of the Constitution. There could not be any more clear and blatant violation of different facets of rights established under Article 21.


JUDICIAL STAND ON MARITAL RAPE

Courts in India have recognized the right to privacy as a distinct facet of the right to life under article 21 of the Constitution and along with all other things, it includes the right to personal intimacies. In State of Maharashtra v. Madhukar Narayan, Supreme Court had held that every woman was entitled to sexual privacy and it was not open for any person to violate her privacy as when he wished or pleased.


In Joseph Shine v. Union of India, Supreme Court held that the husband is not the master of women and that the legal sovereignty of one sex over the other is wrong. Even though having a plethora of judgements on the right to privacy, dignity and bodily autonomy courts are quite reluctant on the issue of marital rape. There exists proper background for the Supreme Court to take on the matter of marital rape but it has successfully dodged the issue until now.

In the RIT Foundation case, Delhi High Court held that marital rape could not be criminalized as it will destabilize marital relations between husband and wife and that it will become a tool for harassing men.


In Arnesh Kumar v. State of Bihar, Supreme Court observed that criminalizing marital rape would cause a collapse in the family system. In Independent Thought v. Union of India, the court explicitly stated that, ‘We make it clear that we have refrained from making any observation concerning the marital rape of a woman who is 18 years of age and above since that issue is not before us at all. Therefore, we should not be understood to advertise that issue even collaterally.’


However, in the same judgement Supreme Court held that sexual intercourse with the wife would amount to rape if the wife were below 18 years of age. Section 375 of IPC states that sexual intercourse with women under 18 years of age will amount to rape irrespective of whether there was consent or not. However, the marital rape exception exempted the husband from the charge of rape if the wife is above 15 years of age. Court held that this exception discriminated against married women who are above 15 years of age and below 18 years of age, arbitrarily. Thus to bring uniformity in the age of consent Supreme Court ruled that the marital rape exception will not apply if the wife is below 18 years of age.


Instant case shows how myopic Supreme Court is in the matter of marital rape. It could have taken marital rape in general under scrutiny, but it restricted itself only to the marital rape of minors.

RECOMMENDATIONS OF VARIOUS BODIES

Law Commission in its 172nd report considered the issue of marital rape. It rejected the idea to criminalize on the basis that its criminalization would cause excessive interference in the institution of marriage. Justice Verma Committee was formed, in the aftermath of the brutal gang-rape case of Delhi to look into existing rape laws advocated for the criminalization of marital rape. This recommendation was, however, rejected by the government citing the sanctity of the family system in India. It contended that the family can resolve the problems itself and the entire family would get stressed if marital rape is criminalized. Moreover, there already exists a law to deal with ‘cruelty’ committed in the institution of marriage. United Nations Committee on the elimination of discrimination against women and the Special Rapporteur on violence against Women has also recommended the deletion of marital rape exception.


CONCLUSION

Rape is rape, no matter what is the relationship between perpetrator and victim. The exception of marital rape violates Articles 14 and 21 of the Constitution as it discriminates arbitrarily against married women and undermines their dignity respectively and hence, is unconstitutional. This subjugation of women by their husbands with the impunity of law is at loggerhead with basic human rights guaranteed to everyone It is a well-known fact that rape causes the ravishment of women. However, when it happens within the institution of marriage, with no substantial recourse available then it causes an aggravated scar on the mental and emotional faculty of women. The agony of being raped but not having the locus to stand against it is deeply chilling. Thus, it is high time that marital rape is criminalized so that right to bodily autonomy and dignity of women is preserved in its truest sense. Various other countries had already done so. Marital rape should not exist as a license to rape under the guise of the sacredness of the institution of marriage. The sexual agency of women should remain with them.