Author: Riya Maggu, II year of B.A.,LL.B.(Hons.) from SRM University, Sonipat, Haryana, Delhi-NCR
Co-author: Vandana, II year of B.A.,LL.B.(Hons.) from SRM University, Sonipat, Haryana, Delhi-NCR
Martial rape doesn’t become a rape….
They say, and why would it be?
Since, He had posted a logo of his surname on her
In India, if rape against woman is committed by an outsider it is considered as a criminal offence under Section 375 of Indian Penal Code but if that outsider is the husband of the woman and he raped her whilst being married, then what will be the scenario! Perhaps not the same as usual, he would not be called as rapist nor he would get punished because he is the husband and on top of that they are married. From thousands of years marriage is known to be one of sacred social institution binding a man and woman lifetime, but here we have this institution being questioned in court of law and whole this notion is connected with marital rape. Marital rape is one of the forms of crime committed against a woman in a four walled house and that too goes unreported.
At the basic outset, any law is valid if it withstands with test of constitutionality. There is no provision in Indian law that talks about the criminalization of marital rape. The supreme court of India as well as the high courts at the present moment are flooded with writ petitions demanding criminalization of marital rape and challenging the constitutionality of Exception 2 mentioned in Section 375 of Indian penal code (IPC). In light, of this ongoing stigma this article critically analyses the concept of marital rape and its constitutionality.
Marital rape means if a wife has been coerced by the husband to engage in sexual relations with him without her consent and she is in a compromising situation that she can’t even debate against it she has been raped by her own husband. A rapist remains a rapist irrespective of the relation he has with woman and same implied here too, if the husband is the one who has raped his wife, then he is a rapist he too deserves a punishment for same like all other crimes. At present only 150 countries have criminalized the marital rape and unfortunately India is not included in the set of these 150 countries because it yet hasn’t criminalized the marital rape. Though, the countries recognized rape as an offence against a woman and have given the penalties for the same but they don’t consider marital rape as one form of the rape committed against a woman just because they are in a marital relationship with each other. Now the main theme as to why we are debating a whole lot about it is that: Why India hasn’t criminalized it yet? Well, the answers to this can many andjustificationshave been given by different thinkers and scholars at different points of time, and some of them are:- Firstly, it is believed that once a woman gets married to a man, it is considered that she has become a servile to her husband and is bound by his choices,no matter what she feels, because husband is the one who earns for the family, fulfil their basic needs and desires and wife has to obey husband’s order. Secondly, there is a pre-assumption in society that when two adult individual gets married a husband has all rights over his wife physically, mentally, bodily in implied terms and it doesn’t matter if wife has expressly told him so or not, here we can see the mindset of society that what it’s all about as there is belief that marriage is based on consensus ad idem. Third, and most recent in trend is that court should not interfere into the private matters concerning husband and wife i.e their marital relations. It is the area of concern for a husband and wife that what is going on in their private relationship so court has no right to infer into that matter and this will be the infringement of their right of privacy.Now, its about court not interfering in the personal space of husband and wife and on other hand we question same in court of law and in this manner, this will not work out. Even the basic principle of doctrine of coverture treats husband and wife as single one identity and as so one cannot rape oneself. Shocking, isn’t it? The main core of the issue in the way of criminalizing marital rape is that if it is criminalized, then it will destroy the basic essence of institution of the marriage and its impacts on Indian society will be long lasting.Secondly, in case if it is criminalized, then on what grounds it will be proven in court of law that how it is a valid and genuine case. Even on medical basis, it will be next to impossible to prove the guilt and further it may be used by the wife to threaten her husband in caseany dispute between them happens.
SITUATION: PAST AND PRESENT
Indian society is patriarchal in nature where male members of society are considered superior than female. Since the time immemorial, this system is being followed in our country which gives rise to male chauvinism. Somehow, this led to women being subjected to various forms of discrimination and exploitation that can be in different form and one of such atrocities which women have to go through is termed as marital rape. In India, there is cultural and social pressure due to which women tolerate it in silence and thousands of cases left unreported. But after all these incidents,victim has to live with her rapist just because he is her husband and this gives him rights to make sexual relationship without her free consent. According to the Indian government’s latest family heath survey about 30% India women aged 18-49 reported having experienced spousal violence, the average Indian women is 17 times more likely to face sexual violence from her husband than from anyone else. Basically, its roots were installed at time of colonial period with emergence of case Phulmoni Devi, which attracted the attention of general public at large level in the year 1881. In this case, Phulmoni Devi, an eleven-year-old child bride, died due to excessive bleeding when her own husband, Hari Mohan, who was in his mid-thirties, tried to consummate their marriage despite his wife being eleven years old. As a result, this incident made to get the recognition of martial rape, although at small scale and made authorities to formulate laws such as Age of consent act 1861. The report of Verma committee also suggested the absolute and complete criminalization of the marital rape, stating that, the right to life.
Now, coming to present scenario the situation is still the same but a ray of hope has been given to people in one of the recent judgements of Karnataka High Court in Hrishikesh Sahoo vs State of Karnataka where it refused to quash a rape complaint registered against a husband by his wife who was accused of treating his wife as a “SEX SLAVE”, well the word sounds horrific in itself, isn’t it? While holding the rape complaint against the husband High court said"A man is a man; an act is an act; rape is a rape, be it performed by a man the 'husband' on the woman 'wife'. If it is punishable to a man, it should be punishable to a man albeit, the man being a husband."
Though, the fired topic has attracted attention of many since the year 2015 in which a petition was filed in Delhi high court to criminalize the marital rape. Thereafter, in August 2017, Central govt says criminalizing marital rape would destabilize the social structure of society and create a social deviance.
Even in the verdict given by Karnataka high court (march 2022), Justice M Nagaprasaanna criminalized the marital rape stated that institution of marriage cannot be used to confer any special male privilege or a license for unleashing of a “brutal beast” on the wife.” A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape. Such sexual assault by a husband on his wife will have grave consequences on the mental sheet of the wife, it has both psychological and physiological impact on her such acts of husbands scare the soul of the wives.”
Even though,Britain, who’s political and constitution structure India is still following has already criminalized it.The united nation has also encouraged the countries around the globe to end up the marital rape by stating that “the home is one of the most dangerous place for women”[i]
EXCEPTION AND THE INDIAN LAW
Section 375 of Indian penal code (IPC) defines the offence to rape as: "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age."[ii]Exception 2 to Sec 375 IPC states that: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”[iii] The section itself considers rape as an offence against a woman but not in case where the there is a consensualsexual act between a husband and wife, since the crux of this whole act is based on the mindset of the marital relation between husband and wife. But on the other side law criminalizes marital rape concept under Section 376A of IPC which says that: “Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.” [iv]It is a crime if man and woman are living separately but not if they are living together and the reason as to why this is so its because the society thinks that way and mindset of society affects our law system be it directly or indirectly. This exception under section 375 is discriminatory in nature as it forbids the married women to be exercise their rights as there is no such obligation in case of unmarried women.
In its 172nd law report the law commission of India[v]did talk about the issue of criminalizing marital rape but as always ignored the question and state that the criminalization of the same “may lead to excessive interference with marital relationship” [vi]and can destroy the institution of marriage. But however, the question here arises that- is marriage that type of contract or an institution that gave the husband right to engage into a non-consensual sexual intercourse with his wife? Well according to us the answer is no, but for society it is yes. In 17th century, England, Sir Mathew Hale said in one of his judgements that “the husband cannot be guilty of rape committed by himself upon his wife ,for by their mutual consent stand contract, the wife hath given up herself this kind unto her husband which she cannot retract”[vii] and the same thing goes for the Indian context too when Former CJI Deepak Mishra held that “I don’t think that marital rape should be regarded as an offence in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values”[viii]from following statements given by the justices itself it can inferred that why in India the concept of marital rape has not been criminalised yet.Keeping this thing in mind that everywhere whether it be the statement of a justice or be it the mindset of society the institution of marriage is given the first priority and this type of situation can’t be interfered just because it is a sacred institution but at the same time there should not be any compromise with the fundamental rights of a women or particularly in context of this topic the wife. But here the statement seems a bit ironical because in Puttaswamy v. Union of India and The State of Maharashtra v. Madhukar Narayan[ix] supreme court ruled that sexual privacy is a fundamental right of all citizens and forced sexual act would be a clear violation of this right. In the cases of The State of Karnataka v. Krishnappa and The Chairman, Railway Board v. Chandrima Das, it was held that rape is a crime against the basic postulates of human rights and is an unlawful intrusion onto the right to privacy and sanctity of a female as guaranteed under Article 21[x].State says it can’t interfere in the institution of marriage because it is a private matter but let’s say there is an instance where a wife is subjected to cruelty or domestic violence in marriage then what will be the response of state to this…same as it held earlier, no it will be different because these two aspects are something which have already been criminalised so state have to take necessary steps to provide legal redress to the women. The concept of marital rape has yet not been criminalised so the matter is taken lightly as compare to the other ones.Perhaps, the tussle is still going in country as recently the Delhi high court gives a spilt judgement where Justice Rajiv Shakdher, who headed the two-judge Bench, struck down as unconstitutional the exception to Section 375 of the Indian Penal Code (IPC) which says that sexual intercourse by a man with his wife aged 18 or above is not rape even if it is without her consent. On the other hand, Justice C. Hari Shankar rejected the plea to criminalise marital rape noting that any change in the law has to be carried out by the legislature since the issue requires consideration of various aspects, including social, cultural and legal. Still the question remains unsolved, now it is totally on the discretion of Supreme Court to either criminalised it or not, on taking note of contemporary circumstances of Indian Society.[xi]
VIOLATIVE OF FUNDAMENTAL RIGHTS OF WOMEN
Article 14 states that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. India is a diverse country with so many cultures inhabiting within the fold of this multi- ethnic society. So, our constitution provides for an equal set of opportunities to its citizens but at the very other side the provision contained in criminal law don’t safeguard the women being raped by her own husband. The exception 2 to sec 375 of IPC has been proven to be discriminatory so far to article 14 because it doesn’t provide the immunity to women against marital rape and at the same time doesn’t provide for any type of punishment if he commits the same and continues to persuade the point that if two young adults are married then husband got every right on his wife even if it comes to point of raping her in order to fulfil his pleasures and lusts. The very base of this type of scenario is based on the existence of patriarchal society since decades and the gender-bias society.
Albeit, Article 15 of Indian constitution forbids discrimination on grounds only of religion, race, caste, sex, or place of birth. Then the question arises, why it is discriminatory in case when it came to address the rights of married women in scenario of marital rape.at the outset, her voice is being shut down on shake of societal prejudice and values?
As per the constitution of India, every citizen of India possesses fundamental rights such as article 21 of the Indian constitution clearly mentions that “protection of life and personal liberty” where the ambit of personal liberty also includes right to live a dignified life. Then the question of fact rises, why this right is not available to married women who is subjected to marital rape? Even in many debates the issue raised is that to what extend exception 2 to section 375 IPC is valid? This exception clearly mentions any sexual act performed by the man on his own wife is not rape as long as the wife is not a minor. The minister of state for home affairs Hari Bhai Parthiban Chaudhary said in 2015,” the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including levels of education, illiteracy, poverty, myriad, social customs and values, religious beliefs and mindset of the society to treat the marriage as a sacrament”.
Is it truly fair to not punish a man for being the rapist of her own wife and truly justified to not give the dignity and respect back to those hundreds of women who have beenraped by their own husband or may be will raped if this scenario continues? Women who have been subjected to this crime have to remain with her aggressor under one roof and also have many long-lasting effects that can affect her mentally, physically and emotionally. So, keeping this instance in mind there is an urgent need to address this issue and criminalize the same. But we have come across types of cases where our laws have been misused by people to threaten other people for their needs and what if same happens once marital rape is criminalized; would the scenario will change or will it remain the same. Well, exceptions are everywhere and here can be too when we would heard of news stating a wife has falsely alleged her husband of committing marital rape on her. Here, we have two dimensions of same that to uphold woman’s dignity but at same time not make it subjected to misuse. So, in criminalizing lawmakers have to consider all pros and cons of it. Moreover, there should be mutual understanding and both the parties involved, should respect the value of “consent” in the relationship.Therefore, at present, before criminalizing it, the basis of the ground to prove the marital rape should be taken in account. As legalizing it, will provide the unenriched benefits to the wife, putting husband into suppressed situation. Even if the light is put on that post consequence of those 150 countries which criminalized the marital rape has to face severe challenges. So, in contemporary world, some new initiatives that can be technological wise and a broad understanding is being demanded from our society to accept the aspect of criminalization of marital rape.
[i]http://www.drishtiias.com [ii]https://www.business-standard.com/about/what-is-section-375 [iii]https://indiankanoon.org/doc/623254/ [iv]https://indiankanoon.org/doc/668689/#:~:text=%E2%80%94Whoever%20has%20sexual%20intercourse%20with,also%20be%20liable%20to%20fine.%5D [v]https://www.barandbench.com/view-point/viewpoint-criminalisation-marital-rape [vi]https://www.barandbench.com/view-point/viewpoint-criminalisation-marital-rape [vii]https://blog.ipleaders.in/marital-rape-ipleaders/ [viii]https://blog.ipleaders.in/marital-rape-ipleaders/ [ix]https://theprint.in/campus-voice/supreme-court-recognises-sexual-right-of-women-how-is-marital-rape-still-legal/725574/ [x]https://theprint.in/campus-voice/supreme-court-recognises-sexual-right-of-women-how-is-marital-rape-still-legal/725574/ [xi]Soibam Rocky singh , Jagriti Chandra, www.thehindu.com,may 11,20222