Author: Anushka Srivastava, II year of B.A.,LL.B.(Hons.) from Chanakya National Law University
The story of victims of marital rape is often a story of pain and misery. The dire consequences of marital rape include the physical as well as psychological well-being of the victim. As a consequence of witnessing such abuse, children’s well-being also gets hindered. As per the statistics of the National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019, every 16 minutes, a woman is raped and according to National Family Health Survey (NFHS) 2015-16 reports, a woman is 17 times more likely to get raped by her husband.
Rape
In Section 375 of IPC, rape has been defined as sexual intercourse done by a man with a woman against her wish; without obtaining her consent; by obtaining it with force, threatening to kill her or someone else, at a time of unsoundness of her mind or intoxication; with/without her consent if she is below the age of 16 or by making her believe that she’s married to the man she’s having intercourse with.
In Sakshi v. UOI, the Supreme Court held that, under the ambit of Section 375 of IPC, only penial and vaginal penetration will be acknowledged as rape. The Supreme Court in Suchita Srivastava v. Chandigarh Administration upheld the right of a woman to refuse engagement in sexual intercourse.
Marital Rape
Since independence, India has seen its growth towards a more open-minded society where everyone’s rights are protected. However, the recognition of marital rape in the laws of the country is a significant question that remains unanswered.
Poland was the first country to have a law criminalizing marital law in 1932. As per UN Women’s 2011 report, 52 countries have recognized marital rape as a criminal offence while others have made exceptions. Unfortunately, India is one of the 32 countries where marital rape is still not recognized as a criminal offence. India is a signatory to the United Nations Convention on the Elimination of all Forms of Discrimination against Women, which has suggested that marital rape should be recognized as a criminal offence.
A three-membered Committee in 2012 was constituted to suggest amendments to the Criminal Law. The committee headed by Justice J.S. Verma, former CJI, suggested removing the marital rape exception and emphasised the fact that the immunity given to marital rape has been removed in most of the countries.
The meaning of rape according to Section 375 of the IPC includes all types of sexual assault including non-consensual sexual intercourse with a woman. However, Exception 2 to this section of IPC discriminates against married women who are above 15 years of age by refusing them equal protection from rape and sexual harassment. According to the Indian Penal Code of 1860, a marriage is presumed to give consent for physical intercourse.
Indian Courts on the legality of ‘marital rape’
Indian Courts continue to take a contradictory stand on the issue of marital rape. Kerala High Court has noted marital rape as a sufficient ground for claiming divorce. Chhattisgarh High Court has ruled that intercourse, even if it is by force, done with a woman by her husband, is not rape.
In 2018, the Gujarat High Court in 2018 had noted that intercourse by a husband, even if it is without consent, does not amount to rape while the Delhi High Court observed that marriage does not mean implied consent given for sexual intercourse.
Independent Thought v. Union of India
The scope of the marital rape exemption has been constricted by the landmark judgement of Independent Thought v. Union of India. In this case, a writ petition was filed challenging the legality and constitutionality of Exception 2 of Section 375. The court stated that Exception 2 of Section 375 of the Indian Penal Code shall be read as ‘Sexual intercourse by a husband with his wife is not rape, provided the wife is not less than eighteen years of age’.
The decision is primarily based on the following reasons- firstly, the considerable age of a wife to be considered as a victim of marital rape was contradictory with other laws. For example, the Protection of Children from Sexual Offences Act 2012 (POCSO) criminalizes any sexual activity carried with a girl less than 18 years of age. Secondly, the classification of victims was based on marital status. which was found to be discriminatory. Thirdly, the Court acknowledged the disastrous impact of child marriage on the life of the girl child.
Conclusion
Though there is an urgent need, Marital rape has still not been acknowledged as a criminal offence even after the recommendations given by the Justice Verma Committee. It is the collective duty of the nation to protect women rights as no nation can progress without safeguarding the rights of women. By bringing legislation like the Protection of Women from Domestic Violence Act, 2005, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, India has made a major improvement in safeguarding women rights, but no major step has been taken against the marital rape.
Despite the identity of the rapist, age of the victim or her marital ties with the abuser, the fact that marital rape is still rape does not change. It is high time that marital rape should be brought under the ambit of criminal offences.