Author: Haritaa Nair, I year of B.B.A. L.L.B. (Hons.) from School of Law, CHRIST (Deemed to be University).
Domestic violence in India is traditionally viewed to be synonymous with the institution of marriage. With time the issue has aggravated in the country. According to the data published in the National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019 report, about 70% of the women in India are victims of domestic violence. [i]
One of the most prominent forms of domestic violence is marital rape. Marital rape is forcing your spouse into having sexual intercourse without proper consent. Marital rape has been recognized and penalized in over 100 countries around the world. Unfortunately, India remains one of the only 36 countries in the world where marital rape does not attract criminal punishment.[ii]
Position of marital rape in India
In India, rape is a criminal offence under sections 375 and 376 of the Indian Penal Code. Though rape is punishable, marital rape does not fall within its purview and is listed as an exception under Section 375. Marital rape in its entirety does not attract liability. Only under a few circumstances is it punishable. Liability is imposed for such an act if the wife is below 15 years of age and is cohabiting with her husband, or if the wife is judicially, or using any custom, estranged. The only relief that can be sought by a married woman above the age of 15 is that it is a ground for legal partition from her husband under the Protection of Women from Domestic Violence Act, 2005. Under this Act, marital rape is considered to be local violence and a breach of trust and affection. Such minimal action is unreasonable when the Supreme Court itself has opined that rape is an attack on the soul of a woman and not just her body. The question of whether the woman was married or not is irrelevant, the only factor that has to be taken into consideration is the absence of consent.
Justification for marital rape
Since ancient times India has been a greatly patriarchal society, where women have been treated as secondary beings, who do not have any autonomy or agency over their bodies. Marital rape was used as an instrument to force women into submission and degrade them by denying them control over their bodies. It so happens that even though countries recognize rape as a crime, they consider rape within marriage an exemption to the crime. The justification or reasoning given for the same is four-fold. The initial two reasons are blatantly patriarchal and are in no way applicable to the present times due to the growing awareness of gender equality. The first one follows the reasoning that a wife is subservient to her husband, which meant that she did not have any rights in the marriage.[iii] In such a scenario the question of rape was non-existent as the husbands’ exercised control over the body of their wives, and enjoyed privileges. The second reasoning, an extension of the first, talks about the identity of a wife merging with that of her husband after marriage.[iv]
The personality of a woman was not given an independent identity. Application of the above-mentioned reasons was brought to a halt with the rise of feminism post the 1970s. No longer were these legitimate reasons to prevent criminalizing marital rape, as the feminist movement recognized equal rights between both genders.
‘Implied consent’ is yet another theory used as a justification. It is assumed that since a man and a woman enter into the institution of marriage out of consent, it means implied consent for sexual activities as well.[v] Such a consideration is because marriage is considered to be a civil contract, and consent to a sexual relationship is regarded as the defining element of this contract. However, this reasoning is extremely flawed as stretching the consent for marriage to include consent to sexual intercourse overshadows the individual comfort levels and choices. In a society like India where arranged marriages are prevalent, such a presumption puts the women in an extremely vulnerable position. The fourth, and the one most invoked in today’s times, is that the criminalization of marital rape would amount to excessive interference into the private life of a husband and wife.[vi]This justification places the private sphere of life before the individual autonomy of a woman. The State is reluctant to enter the delicate sphere of personal life. The State does not compel anyone to get married or take a divorce, and decisions of such kind are left to the people. However, in instances when a woman is subjected to cruelty within a marriage, it becomes the primary responsibility of the State to ensure that she has an opportunity to seek legal redressal.
Marital rape is also a violation of the rights of a woman guaranteed under Articles 14 and 21 of the Indian Constitution. The distinction of treatment between an unmarried and a married woman is a clear violation of the right to equality guaranteed under Article 14. Marital status cannot be a ground for exempting the liability placed on the perpetrator. Rape is an abuse of the dignity of a woman, and a direct attack on the right to life and liberty enshrined under Article 21. In the case of SuchitaSrivastava v. Chandigarh Administration, the Apex Court equated the right to make choices relating to sexual activities with the rights of personal liberty, privacy, dignity, and hence was placed under the ambit of Article 21. Given the above interpretation denying such a relief to married women is blatantly unfair. It is high time that the State and the judiciary begin to move away from the concept of the ‘private sphere’ and gives more importance to individual autonomy and the will of a woman.
Another fear associated with the criminalization of marital rape is the possibility of false accusations and the probability of utilizing the provision to settle personal scores. This rationale is highly inappropriate as the investigation and the subsequent conviction of a person depends upon the efficiency of the enforcement agencies. Many other offences like harassment in the name of dowry, domestic violence, rape, or any other form of harassment or torture also have chances of false reporting and filing of cases, but these have still been deemed as criminal offences. The enforcement agencies have to be trained and sensitized about the nitty-gritties of the act. By introducing penal provisions and imposing hefty fines on false accusations, a strong message on misusing the provisions can be sent to society. Denying all the women the protection of law based on the fear of misuse by some, cannot be deemed just.
In the aftermath of the Nirbhaya case of 2012, there was a huge clamour for revamping criminal laws concerning the protection of women from any form of sexual harassment. One of the findings of the Justice J S Verma Committee, which was set up to look into the matter, opined that marriage or any other intimate relationship between a man and a woman should not be sufficient grounds for defence for sexual crimes like rape.[vii] This violates the bodily integrity and autonomy of the woman, and as a consequence violates her fundamental rights. The three-member panel clearly and rightly observed that exemption of punishment for marital rape is based on outdated and obsolete views of marriage, and does not align with today’s world where women and men are recognized to be individuals with equal rights and freedoms.
To inculcate the views stated in the above report there has to be massive measures undertaken to fulfil the provisions in their entirety. The first move should be removing exemption 2 from Section 375. This has to be then coupled with raising awareness about women’s rights and preserving their right to bodily integrity. All officials starting from law enforcement officers, doctors, lawyers, judges, etc. should be provided with sufficient training to deal with circumstances and should inculcate a sense of gender equity among them.
It is highly unbecoming of modern society to deny its women the right to choose about her body. Marital rape has to be criminalized and people found liable under it should be dealt with an iron hand. Marital rape is horrendous to a woman, as she is expected to continue residing with the person who wronged her, which happens to be her better-half. Bringing such an act under criminal law will further give a fresh boost to women's empowerment. It will help in initiating a shift in the minds of society. The consideration of a husband and a wife as two distinct and separate entities will attain its true meaning, and the women will finally be released from the centuries of violence they have been subjected to. The use of sex as an instrument to obtain submission will no longer be legitimized and will usher in a new ray of hope; the hope of a just and fair society where every individual is treated equally, regardless of their gender.
[i]AnirudhPratap Singh, The impunity of marital rape, The Indian Express, https://indianexpress.com/article/opinion/columns/the-impunity-of-marital-rape/
[iii]Rebecca M. Ryan, The Sex Right: A Legal History of Marital Rape Exemption, 20 LAW AND SOCIAL ENQUIRY, 944 (1995)
[iv]RaveenaRaoKallakuru&PradyumnaSoni, Criminalisation of Marital Rape in India: Understanding It's Constitutional, Cultural and Legal Impact, 11 NUJS L. REV. 121 (2018)
[v][v]To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) HARVARD LAW REVIEW, 1256 (1986)
[vi]Id. at 941
[vii]Marriage is not a valid defence against rape, says the committee, The Hindu, https://www.thehindu.com/news/national/marriage-is-not-a-valid-defence-against-rape-says-committee/article4351148.ece