Author: Md Afan Abdullah, III year of B.A.,LL.B.(Hons.) from Jamia Millia Islamia, New Delhi
Co-author: Zeeshan Ekhlaque, III year of B.A.,LL.B.(Hons.) from Jamia Millia Islamia, New Delhi
Introduction
Institution of marriage is a very beautiful thing, for both the couples. But, it becomes hell for the female in many cases especially in India. Dowry death, voluntarily causing grievous hurt, sexual assault by husband are some of them.
Marital rape is one of the most underreported form of sexual assault. It is believed that it is a duty of a woman (wife) to provide sexual pleasure and eternal pleasure to her husband. I believe that 'consent' is the most important key in this type of case. A forceful intercourse by her husband or any one should be counted as rape. If there is a lack of consent, that means the body of the female is not ready to intercourse. It will give the same amount of injury to the female. Having sex with any woman without consent is unjustifiable.
Current Legal Status
RIT Foundation filed a writ petition in Delhi High Court[1] to criminalise marital rape in India in 2015. RIT Foundation is an NGO which works in collaboration with many NGOs to promote social and gender equality in India. A marital rape victim also joined the petition to get justice for herself and l000s of other women. Section 375 of the IPC[2] says that A man is said to commit rape if he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person without her freely consent. Later, exception 2 says that sexual intercourse or sexual acts by man with his own wife is not rape if she is not under the age of fifteen years. Section 376B of IPC[3] states that if a man does sexual intercourse with his wife who is living separately whether under a decree of separation or otherwise without her consent will be punished only for maximum 7 years and also liable to fine. But, section 376 says that punishment for rape may extend to imprisonment for life, and shall also be liable to fine. That means the law is not recognizing sexual assault or sexual intercourse without consent by husband as a rape. RIT Foundation challenges both the sections, exception 2 of section 375 and section 376B of IPC. The sections were challenged as the difference in punishment is arbitrary and unconstitutional.
The woman should have the right to say 'No', to say that she is not willing to do intercourse. Exception 2 of section 375 and section 376B is like a woman does not have rights on her own body after marriage. In KS Puttaswamy v. Union of India[4], apex court in 9 judge bench ruled that the right to sexual autonomy and bodily integrity comes under Article 21 of the constitution. That means both the sections are also violating the Article 21 of the Indian Constitution. Justice Shakder during the hearing of marital rape case[5] said that even a sex worker has the right to say no even at a very belated stage. Then, why should a wife not have the right to say no? Is the wife less empowered than the sex workers?
Legal Status in the World
Nowadays, more and more countries are recognizing marital rape as a rape. More than 150 countries[6] has recognized marital rape as a criminal act as of now. Only a few countries are left to do so. India is one of them. USSR became the first country to recognize marital rape as a crime in 1922[7]. After that many countries started recognising it. According to a survey, about 10-14% of married women are raped by their husbands[8].
Cases and Judgements
In Dilip Pandey vs State Of Chhattisgarh[9] Chhattisgarh High Court released the person facing trial for allegedly raping his wife. Court observed that Indian law does not recognize marital rape as a crime. Justice N K Chandravanshi fully relied on the Exception 2 of section 375 of the IPC.
In X v. X, 2021[10], two bench judge of Kerala High Court observed that law does not recognize marital rape as a crime in penal laws, it doesn't mean court will not recognize the same as a form of cruelty to grant divorce. The court has granted the divorce petition filed by the respondent.
In 2012, a committee was set up under the chairmanship of Justice Verma[11] to reform criminal law. One of the key recommendation was to remove to marital rape exception. Even after 10 years, it has not been removed yet.
There was a case[12] before Mumbai Additional Sessions Court in which the husband did the forced sex against her will. Because of this act, she has become paralysed below her waist. Even after this, the court said sexual intercourse without the will of the wife is not illegal. This case doesn't come under any legal scrutiny.
Current Status
Marital rape is a crime and crime should be penalised in each and every condition. It doesn't matter who has done the crime. For now, about only three dozen countries have not accepted it as a crime. Some of them are Libya, Bangladesh, Nigeria etc. Here, it is still legal to rape ones wife. If one is legally not allowed to do rape, do sexual assault, then how one can legally rape her wife. There are 100s of sexual assault cases in India which are unreported. Then this where one is legally allowed to do so. Are we still considering a woman's body as an object or she has no right to her body after marriage? An NGO named Men Welfare Trust moved Gujarat High Court[13] to be a party in marital rape case. Their demand was to not remove the exception 2 of section 375 and 376B. That means they don't want marital rape as a crime. Nowadays, India is also becoming a key player in world politics. In this condition, India should also have to show that they are like other progressive countries. This orthodox thinking that a husband has full rights on a woman's body should be changed. It is very simple, No means No!
Endnote
1. Why is still pussyfoot for Criminalising Marital Rape available at https://www.firstpost.com/india/why-we-still-pussyfoot-around-criminalising-marital-rape-10288361.html (last visited on Feb 10, 2023)
2. Marital Rape isn't a crime in India. This lawyer is fighting to change that available at https://time.com/6160414/marital-rape-india-karuna-nundy-interview/?utm_source=twitter&utm_medium=social&utm_campaign=editorial&utm_term=world_women%27s-rights&linkId=160412568 (last visited on Feb 10, 2023)
3. Dilip Pandey v. State of Chattisgarh available at https://indiankanoon.org/doc/103857556/ (last visited on Feb 12, 2023)
4. In a landmark judgment, Kerala HC recognises marital rape as a ground for divorce available at https://www.thenewsminute.com/article/landmark-judgment-kerala-hc-recognises-marital-rape-ground-divorce-153556?amp (last visited on Feb 13, 2023)
5. Marital Rape: New Research and Directions available at https://vawnet.org/material/marital-rape-new-research-and-directions (last visited on Feb 13, 2023)
6. Various Judgements available at https://indiankanoon.org/ (last visited on Feb 14, 2023)
[1] https://www.livelaw.in/pdf_upload/written-submission-407338.pdf [2] https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=424#:~:text=Provided%20that%20a%20woman%20who,intervention%20shall%20not%20constitute%20rape.&text=1.,-Subs. [3] https://indiankanoon.org/doc/396/#:~:text=%E2%80%94Whoever%2C%20being%20a%20public%20servant,offence%20of%20rape%2C%20shall%20be [4] (2017) 10 SCC 1, AIR 2017 SC 4161 [5] https://timesofindia.indiatimes.com/india/if-sex-worker-has-right-to-say-no-to-sex-why-should-a-wife-be-less-empowered-hc/articleshow/88886063.cms [6] https://indianexpress.com/article/research/a-history-of-the-movement-to-criminalise-marital-rape-across-the-world-7753164/#:~:text=in%20150%20countries.-,As%20of%202019%2C%20marital%20rape%20has%20been%20criminalised%20in%20150,marriage%20cannot%20be%20considered%20rape. [7] https://ehne.fr/en/encyclopedia/themes/gender-and-europe/civil-law-a-tool-masculine-domination/right-correction-fight-eliminate-marital-violence [8] http://www.ncdsv.org/images/nnfr_partnerviolence_a20-yearliteraturereviewandsynthesis.pdf [9] CRR/117/2021 [10] https://indiankanoon.org/doc/168997297/ [11] https://adrindia.org/sites/default/files/Justice_Verma_Amendmenttocriminallaw_Jan2013.pdf [12] https://www.indiatoday.in/law/story/forced-sex-in-marriage-cannot-call-it-illegal-says-mumbai-court-1840328-2021-08-13 [13] https://indianexpress.com/article/cities/delhi/social-aspects-would-have-to-be-considered-men-welfare-trust-before-delhi-high-court-7744508/