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MARITAL RAPE: SHOULD IT BE CRIMINALISED?

Author: Abubakar Shamsi, II year of B.A LL.B (Hons.) from Jamia Millia Islamia


Introduction

India is one of the thirty-six countries[i]where marital rape is decriminalized, yet. Rape is a heinous offensenot merely against the victim but the society at large, which is definedunder section 375 of the Indian Penal Code, 1860[ii](IPC) as “unwanted sexual intercourse without an assent of the victim by coercion or due to undue influencebecause of physical drive or dangers, or due to deceitful demonstration of the perpetrator”. On the other hand,marital rape or spousal rape is unwanted intercourse by a man on his wife obtained by force, threat of force, orphysical violence, or when she is unable to give consent.Marital rape is not an offense in India and section 375 exception 2 of IPC protects ahusband from being liable for raping his wife who is 15 years of age and punishes the husband if the wife is below 15 years but, the punishment is more than nothing.

Historically, women have been considered first as a father’s property than to theirhusbands after marriage. Therefore, rape laws were created toprotect the property interestsmen had in their women, not to protect women themselves. And marital rape was nothing but theft or tort to a man’s property. Marital rape decriminalizationstarted in the 1960safter the second wave of feminism in the Germany 1960s and after the landmark judgment of R v. R[iii]on 23 October 1991whichwas the first rape case in the U.K in which the defense of marriage is a consent for sex rejected and held the accused liable for raping his wife. Almost all the major liberal democracies apart from India have strictly enactedlegislationcriminalizing marital rape. However, marital rape in India is not a criminal offense, even after the Justice Verma Committee Report[iv]recommendationsthat the IPC should differentiate the rape within the marriage and rape outside the marriage.


Are there any Marital Rape Laws in India?

Unlike, the other adjoining countries like Nepal, Mauritius, etc.where Marital rape is a crime, Indian laws remain silent about marital rape even after the recommendation of the Justice Verma Committee Reports on 23 January2013 to make changes in the rape provisions given in IPC. IPC has given an exception to the husband in raping her wife under section 375 exception (2),which says unwanted sexual intercourse with a wife under the age of 15 years is not rape while if she is under 12 then their animprisonment may not less than 2 years and maximum 7 years. But this 15 years of age exception has been annulled by the Supreme Court in the case of Independentthought v. Union of India (2017)[v] which criminalizedthe raping of a minor that is below 18 years of age and should be charged withthe sexual act under the POCSO Act, 2002 but, it was merely a judicial interpretation, and due to not any legislature backing many courts didn’t follow this judgment in many later cases like inthe case of Khushabe Ali v. State of UP (2021)[vi].


Later in IPC, a provision of consent under section 375(B)was amended which criminalized the rape of a judicially separated wife with imprisonment not less than two years which extends to seven years, and shall also be liable to a fine.Section 3 of the POCSO Act,2012,[vii] has made sexual acts with a girl below 18 punishable but not mentioned the sexual act by the husband with his minor wife. And Section 3 of the Protection of Women from Domestic Violence Act, 2005[viii] punishes the omission or commission or conduct of domestic violence where the person harms or endangers the physical and mental health and sexual abuse, harasses or coerces to obtain any unwanted favor, and threatens her or person related to her.


Constitutional Validity of Marital Rape

It has been observed that in most marital rape cases the marriage was forced.The ICRW-UNICEF data[ix] reveals approximately 12 million girls are married every year before reaching the legal age of marriage i.e 18 years (now 21 years) according to a 2018 surveyand have not discriminated against only low-incomecountries or low-incomefamilies and it is also not bound to mere any region, religion, or culture.

The presumption of rights of a woman which would be violated by Marital Rape is given below-

1. Right to Equality (Article 14)-It talks about the treatment of each individual equally before the law but, Indianlaw discriminates womenagainst female victims who have been raped by their husbands. It is because theIPC was drafted based onVictorianpatriarchal norms,which had believed women slaves tomen.


2. Right to live with dignity (Article 21)– The right to live with dignity is a fundamental right under article 21and was first observed in the Francis CoralieMuin v. Union Territory of Delhi[x]case. Marital rape degrades the dignity of a woman.So, Courts now have begun acknowledging the unwanted sex with a violation of women’s dignity like in the case ofThe State of Karnataka v. Krishnappa.[xi]


3. Right to Sexual Privacy-InJustice K. S. Puttaswamy (Retd.) v. Union of India[xii], the Supreme Court recognized that the right to privacy is protected under article 21 which also includesthe right to sexual orientation to all as a part of the right to privacy and also emphasizedand indicated the right to sexual privacy which conflicts with exception 2 of the sec. 375 of IPC,1860.


But it has not been cleared by the court yet whether Section 375 IPC exception 2 is constitutionally violative of article 14 19 or 21 or not. Ithas been seen in the recent case of the Delhi High Court whichgavea split verdictas Justice Shedkar declared section 375(2) constitutionally invalid while, the other judge Justice Shankar said he doesn’t agree that section 375 exception 2 violates article 14, 19 or 21 or constitutionand now the verdict will be challenged in the Supreme Court.


Should Marital Rape be Criminalised?

Marital rape is not completely criminalized in India. It has caused physical as well as mental damage to the woman. Even after several countries have criminalized marital rape andthe recommendation given by Justice Verma Committee to make changes in rape provisions given under IPC, and even after the many judgments of the Hon’ble Supreme Court in which he asked the legislature to make provisions on marital rape, but, the government has no taken the issue in consideration yet.


Marital Rape cases have been reported mainly where marriage was forced or in Child marriages,though it is prohibited and marital rape also leads to other violence against the women apart from unwanted intercourse such as beating, adultery, mental torture, and other domestic violence against the women and lower her self confidence.


The Protection of Child from Sexual Offences Act, 2012 (POCSO) punishes the person who committed sexual violence against a minor even if the consent was given. But remained silent about the intercourse by the husband with his minor wife, which created confusion in making a judicial decision in the recent case of Hrishikesh Sahoo v. State of Karnataka[xiii], Justice M Nagaprasanna held that, when the husband “rapes” a wife, he cannot claim the protection of exception enumerated under Section 375 of the Indian Penal Code (IPC), since the exemption is not “absolute”.


Conclusion

So, as we have seen a victim of marital rape can’t file a suit straight against the marital rape but,shehas to look into other provisions like under POCSO Act,2002, if she is a minor or section 375 (B) of IPC,1860if she is raped during judicial separation but, till now there is no exact law which talks about all the aspects of marital rape which gives immunity to men to escape after committing such a heinous crime against her wife. The government should look into this problem thoroughly and after analysis, a new law should be enacted which will be the basket that will contain all issues regarding marital rape under a single actit should alsobe ensured that both the husband and wife’s marital rights won’t be violated.[xiv]

[i]Only 36 Countries Have Not Criminalised Marital Rape, India Is One of Them is available at https://theleaflet.in/only-36-countries-have-not-criminalised-marital-rape-india-is-one-of-them/ [ii] The Indian Penal Code, 1860 (Act 45 of 1860), s.375. [iii](1992) 94 Cr App R 216 [iv] Justice Verma Committee Report Summary available at https://prsindia.org/policy/report-summaries/justice-verma-committee-report-summary#:~:text=Justice%20Verma%20Committee%20was%20constituted,report%20on%20January%2023%2C%202013. [v] Independent Thought vs Union Of India on 11 October 2017. [vi]Khushabe Ali v. State of UP (2021). [vii] The POCSO Act, 2002(Act 32 of 2012), s.3 [viii]THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005, s.3. [ix] Child Marriage available at https://www.icrw.org/issues/child-marriage/#:~:text=The%20latest%20UNICEF%20data%20shows,and%20we%20must%20do%20more [x] 1981 AIR 746, 1981 SCR (2) 516. [xi] ILR 1994 KAR 89, 1993 (4) KarLJ 680. [xii] (2017) 10 SCC 1 [xiii]Why Karnataka Marital Rape verdict is problematic available at https://www.newindianexpress.com/opinions/2022/apr/15/why-karnataka-marital-rape-verdict-is-problematic-2442098.html