CRIMINALISATION OF MARITAL RAPE IN INDIA BY - RUCHITA KAUNDAL

CRIMINALISATION OF MARITAL RAPE IN INDIA

AUTHORED BY - RUCHITA KAUNDAL,

PhD Scholar, Gujarat National Law University.

Every women marries with a dream of commitment and care. But imagine, the very first night where instead of love and respect she is used as a piece of meat with no wishes of her own, by none other than her companion. The ordeal continues every night from being compelled to enact pornographic movies to insertion of objects into her vagina. If she finally gathers the courage to take help from the family she is hushed, to not speak of the “bedroom affairs”. If she seeks help from police, or stands for her rights she is either ridiculed for not fulfilling her matrimonial duty, or is asked to be grateful as her husband is being faithful. The law of the land, itself does not consider it a crime. A dominant view among women, youth and the activists has been to make marital rape a punishable offence due to India’s patriarchal setup. Whereas a more orthodox view remains that marriage being a sacrament, criminalizing marital rape would threaten the very institution of marriage. The present paper tries to explore the constitutionality and the required changes in the law, to provide voice to these countless voices, and bring them under the umbrella of state protection for their basic right to a dignified living as given under Article 21 of the Constitution of India.

Keywords: Marital Rape, Rape, Sexual Abuse, Sexual Assault, Consent, Section 375.

1. INTRODUCTION

While on one hand India celebrates some of the outstanding decisions passed by the Hon’ble Supreme Court, on women rights, there seems to be a section of women who continue to live in fear and suffering inside their homes. The idea of marriage as a pure, inviolable and sacred as depicted by the mainstream cinema is a myth and contrary to the reality of numerous Indian women. The definition of Rape as stated under the Indian Penal Code, 1860 (“the code”) tends to recognize all forms of sexual assault which include non–consensual intercourse with a woman as a violation to a women’s bodily integrity and dignity.[1] Disappointingly, the said section fails to categorize the aforementioned act as an offence when perpetrated by a husband towards his wife not being below 15 years of age.[2] Isn’t rape always rape? Why the discrimination?  When a woman is raped by a stranger the whole society comes together to seek justice for the victim but what happens to the victim who is raped by her own husband. They are rape survivors, too.

1. HISTORICAL BACKGROUND

The connection between the acts of rape and marriage relates back the definition of the term rape which was originally akin to the Latin term “rapere” or “rapine” meaning to loot, take away, abduct or destroy a property or person.[3] An unmarried girl, often considered as the property of the father if molested by a stranger led to an offence committed against the father’s property and not against the girl per se. The punishment for the offence was to compensate the father either through payment of fine or by marrying the girl.[4] Thus, there was an inseparable relation between marriage and rape, and therefore the concept of rape of a woman by her own husband was inconceivable to the society.

A similar common law principle as stated by Sir Matthew Hale, 1736 (mentioned below), thus found its way into the criminal law statute of India

 “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract”,[5]

1. EVOLUTION OF RAPE LAW AND PROTECTION TO WOMEN IN INDIA

The definition of rape under Section 375 and 376 remained unchanged since the inception of the code of 1860 until the Criminal Law Amendment Act (“the act”), 1983. The act, a result of the public uproar caused due to the Supreme Court ruling in the in famous Mathura gang-rape case[6] brought in some very important protections. The act amended Section 114 –A, of the Indian Evidence Act creating a presumption in favour of the victim if she states that there was no consent for sexual intercourse. Section 376 was also amended to include rape in the context of abuse of authority, custodial rape, forced intercourse by husband with the wife during legal separation etc.  But certain issues like marital rape and rape by an authoritative figure inside the family still remained untouched. Nonetheless this began a movement of expansion and progression in the rape laws in providing protection from the violent sexual crimes committed against women.

The next wave of change came with the setting up of the Late Justice Verma Committee as a result of the brutal 2012 Delhi gang rape case[7]. The recommendations of the committee in the form of Criminal Law Amendment Act 2013 broadened the definition of rape by bringing in various forms of penetration on any of the woman or girl’s body parts.[8] Under Section 376, certain specific acts of rape were also added including rape by a relative, guardian, teacher, person in position of trust or guardian etc., rape on a person suffering from mental or physical disability, or rape resulting in grievous harm, maiming or causing endangerment.[9] The amendment further introduced various other forms of violence like acid attack, voyeurism, gang rape and stalking.[10]

But once again the act of marital rape, although being one of the recommendations put forth by the Verma committee failed to crystallise into an offence under the amendment act.[11]

The most recent change came through a public interest litigation filed by a non-profit organisation in the supreme court for protecting child brides from the offence of marital rape.[12] The argument raised before the court was that exception 2 of section 375 which exempts a sexual act by the husband with his wife not being under the age of 15 years, from the definition of rape was violative of the Constitution of India (“the Constitution”). The supreme court upholding the said argument stipulated that the distinction created under the section between a married and unmarried girl was arbitrary and against the very spirit of Article 15(3), Article 21 and Article 14, of the Constitution.[13] The court further called attention to the fact that husbands could be charged with lesser sexual crimes like sexual harassment, outraging the modesty of a women, sexual harassment, assault etc. but were protected from a much heinous crime of rape.[14] Lastly, the court in furthering the fight against marital rape pointed out to India’s International obligation under the CEDAW.[15]

1. ARGUMENTS AGAINST CRIMINALISING MARITAL RAPE IN INDIA

The term marital rape refers to rape when committed by the husband with his wife. Marital rape has been declared as a criminal offence in about 50 countries, including Nepal, United States, Britain and South Africa.[16] But like the other remaining countries the act of marital rape stays protected in India. In doing so there are four main justifications put forth for not criminalising marital rape in India. First off is the theory of ‘implied consent’ which states that marriage connotes an irrefutable presumption of consent between the husband and the wife and sex being an integral part of marriage.[17] The second argument raised is that women in India have already been provided with adequate number of legal recourses under Protection of Women from Violence Act, Section 498A of the Indian Penal Code and various other personal laws dealing with marriage.[18] Thirdly, that criminalising marital rape is not plausible in India due to its cultural construct and criminal law must not intrude into the private domain of marriage and fourthly, which is a more nuanced justification, being the likelihood of the offence getting misused by woman to harass their partners.[19]

1. Theory of Implied Consent

The theory of implied consent can be first traced back to the statement made by Sir Mathew Hale of England, 1736 wherein he stated that marriage is a contract and on entering into the said contract a woman impliedly consents to sexual intercourse. Thus if the husband forces the wife for sexual intercourse, he cannot be charged with rape as he is merely exercising his right.[20] Another instance for this justification can be seen from the suggestion given in the 42nd Law commission report for criminalising non-consensual sexual intercourse by a man with his wife during judicial separation. It implied that consent is presumed when the husband and wife are living together but not otherwise[21]. In India it is not new to say that freedom of women after marriage lies at the hands of their husbands. Thus the argument that marriage implies consent is still used in justifying marital rape as seen by the Law Commission of India’s 172nd Report on Review of Rape Laws of 2000.[22]

1. Adequate legal remedies

The most common argument raised by the proponents of marital rape exception is the presence of alternative remedies available to women under Protection of Women from Violence Act, Section 498A of the Indian Penal Code and various other personal laws dealing with divorce and marriage. Thus enforcing the idea that criminalisation is not important and would only lead to burdening of the existing overburdened judiciary. The definition of Domestic violence brings under its purview sexual abuse but provides for only certain civil remedies.[23] Section 498A which provides criminal penalties for a husband or his relatives subjecting a woman to cruelty.[24] The Hindu Marriage Act provides “cruelty” as a ground for divorce. None of the above mentioned remedies do anything to deter the violent behaviour of the husbands but only provide for a way out for the wife or grant her a civil remedy. The Supreme Court in India upheld that denial of conjugal relations may amount to cruelty and thus can be a ground for divorce.[25] Therefore, it becomes more practical to criminalise marital rape and retain the recourse for men to apply for divorce on denial of sexual relations as cruelty.

1. The role of culture for non-criminalisation of marital rape

The argument that due to the stark difference between the Indian culture and that of the west makes it implausible for criminalising marital rape, falls in the forefront in the fight against marital rape exemption. The cultural construct of marriage as a sacred and pious relationship and any criminal intrusion into it would destabilise its foundation.[26] This argument has been turned down by the supreme court stating that marriage is a personal affair and the state has no role in destabilising it.[27] The court further held that if the presence of legal remedies like divorce and judicial separation could not be seen as destroying the institution of marriage criminalising marital rape too could not be seen as an instrument to destabilise the institution of marriage.[28] On the other hand acts of marital rape damage the institution of marriage which is based on trust and confidence and thus it is the duty of the state to protect the constitutional rights of the individuals within this institution.

1. Misuse of Law

The argument propounded by those who support this contention is that the repealing of the marital rape exception will lead to the misuse of law and may also lead to the law being used as a tool for settling scores with their husbands. Similar arguments have been raised in the past against some of the other laws enacted for the protection of women in spite of their failure to provide any empirical data on the same.[29]  On the contrary in accordance to the National Family Health Survey (NFHS)-4  by the Union health ministry 2 out of every 5 women have suffered sexual, physical or emotional violence by their husbands.[30] Further, the proponents fail to take note of the fact that the reason for the low rate of convictions and reported cases under these laws is due to the barriers of  social taboo, dependency, illiteracy and limited accessibility  to the legal system. Women who gather the courage to go to police are often turned away or asked to take back their complaints. Also the reasoning that factors like poverty, illiteracy make the concept of criminalising marital rape unhelpful directly contradicts with the argument of misuse of law.[31]

1. ARGUMENTS FOR CRIMINALISING MARITAL RAPE IN INDIA

There have been various arguments which support the criminalisation of marital rape in India. The marital rape exception contravenes both the constitutional as well as international obligations. Furthermore, the justifications for the existence of an archaic law reflects the old and outdated approach of our society. An approach that has been ousted under various international jurisdictions.

1. In contravention with the Constitution of India

Article 13, of the Indian Constitution states that any law in force if in contravention with any if the fundamental rights of an individual shall be void.[32] The continuance of the marital rape exception under the IPC gets directly hit by Article 13 as it violates some of the very basic fundamental rights guaranteed to an individual. Article 14 of the Indian Constitution states that the state provides to all equality before law and equal protection of law. While the phrase “equality before law” ensures that all person shall be treated equally without any special privileges to any of them, the phrase “equal protection of law” ensures the concept of positive discrimination and that there should be equality amongst equal and not unequal. Thus creating the concept of positive discrimination. The marital exception clause fails to fulfil this test of reasonable classification as provided under article 14 and article 15(3), which should be based on intelligible differentia and reasonable nexus.[33]As stated by the Supreme Court in the case of Independent thought v. U.O.I [34], that the exception clause creates an artificial distinction between an unmarried girl child and a married girl child, a similar distinction could be thus put forth for creating a distinction  between married and unmarried adult women which would violate the spirit of Article 15(3).[35] Further , Article 21 of the Indian constitution provides to  every individual the right to life and the right to personal liberty, which includes within it a life comprising of something more than mere animal existence and a life of dignity.[36] Allowing the marital rape clause under the statute thus directly infringes a person’s right to live with dignity and honour.

Furthermore, as enumerated by the supreme court time and again in a variety of cases that article 21 includes woman’s right to bodily integrity and her right to privacy and that she is entitled to the protection of law in case of intrusion.[37]

Additionally, the Supreme court of India has interpreted article 21 to comprise of right to health and the offence of rape is known to consist of a plethora of physical as well as psychological problems thus violating the right under article 21 for married women.[38]

1. In Contravention with the obligations under International Law

India is a state party and has also ratified the Convention on the Elimination of all forms of Discrimination against Women (CEDAW). The convention lays down that discrimination against women would include “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status”. [39] In addition to this Article 2(a) of DEVAW (Declaration on the Elimination of Violence Against Women) although not directly binding is a universally accepted document states the act of marital rape as violence against women. CEDAW also puts an obligation upon the state parties to implement effective legal measures including civil and criminal remedies to protect women against all kinds of violence [40] The United Nations General Assembly through its Resolution 71/170 too called upon the member states to implement and take effective steps towards violence relating to marital rape.[41]

Furthermore, allowing an exception for marital rape disregards woman’s right to be free from discrimination under international law.[42]

Right to life, has been guaranteed under international law under numerous human rights conventions and treaties like the UDHR[43]  and ICCPR[44].

Maintaining the marital rape exemption violates the provisions of the CEDAW as it requires the state parties to eliminate prejudices that perpetuate stereotypes on the basis of gender and the act of marital rape leads to a portrayal of women as sexual property thus denying her equal status in the family.[45] Lastly penalising marital rape would lead to fulfilling India’s obligation under the UDHR[46] and the ICESCR[47] to protect an individual’s right to health and well-being.

1. CONCLUSION

It is evident that marital rape is a gruesome act prevalent in our society under the garb of marriage and until we do not understand that the concept of marriage is that of equal partnership and not legalised sex, abuse within the marriages would continue. It is crucial to recognise the unconstitutionality of the provision that denies women equality and autonomy. The protection from rape also leads to India’s failure in keeping its international obligations. The statistics that show that women are 17 times more likely to get sexually abused from her husband than by a third person too make it important that marriage as a defence to rape should be removed from the penal statute.[48] Furthermore, on critically examining the arguments that propose to keep the exception it can be seen that the arguments do not have a legal standing. In light of all of this, the author proposes certain changes required to be made by the legislature on the lines of suggestions formulated by the Justice Verma Commission report.

The first proposition being that the exception clause be deleted in its entirety.  Second, that it be expressly stated that the relationship of husband and wife shall not be a defence for rape. Third, that the sentencing policy unlike that provided for non-consensual sexual intercourse during judicial separation, be kept the same as for general rape. Fourthly, that some of the qualifications relating to the amount of force (physical or other form of cruelty) provided under the laws of various countries criminalising marital rape can be laid down as a criterion for establishing marital rape[49] and lastly, it is proposed that certain amendments in the Evidence Act relating to bad character and presumption should be made so as to safeguard that it takes into account the complexities of prosecution in cases of marital rape.

[1] The Indian Penal Code,1860, Section 375.

[2] The Indian Penal Code,1860, Section 375, Exception 2.

[3] Stellina Jolly and M.S. Raste, “Rape and Marriage: Reflections on the Past, Present and Future”, 48 JILI 279 (2006).

[4] Ibid.

[5] M. V. Sankaran, “The Marital Status Exemption in Rape”, 20 JILI 597 (1978).

[6] Tuka Ram and Anr vs State of Maharashtra, 1979 AIR 185.

[7] Report of the committee on amendments to Criminal Law, 2013. New Delhi: PRS Legislative Research; 2013

[8] India: Act No. 13 of 2013, The Criminal Law (Amendment) Act, 2013 [India], 2 April 2013, available at: https://www.refworld.org/docid/54c218784.html [[accessed on 20-01-2020]

[9] Ibid, pg. 6

[10] Ibid, pg. 7-8

[11] Krina Patel, “The Gap in Marital Rape Law in India: Advocating for Criminalization and Social Change”, 42 FILJ 1525 (2019).

[12] Independent Thought v. Union of India, WP (CIVIL) No. 382 OF 2013

[13] Ibid

[14] Supra 12, para 77.

[15] Supra 12.

[16] Ellen Wulfhorst, “UN Urges Countries to End Marital Rape and Close Legal Loopholes”, Global citizen, 26 June, 2019, available at: https://www.globalcitizen.org/en/content/un-women-marital-rape-laws/, [accessed 20 January 2020]

[17] Raveena Rao Kallakuru & Pradyumna Soni, “Criminalisation of Marital Rape in India: Understanding Its Constitutional, Cultural and Legal Impact” ,11 NUJS L. Rev. 1 (2018)

[18] Supra 11, pg. 1527

[19] Supra 11, pg. 1529 - 1533

[20] Maria Pracher, “The Marital Rape Exemption: A violation of a woman’s right of privacy”,11 GGULR 11(1981).

[21] Supra 17, pg. 5

[22] Law Commission of India, 172nd Report on Review of Rape Laws (March, 2000), available at: http://www.lawcommissionofindia.nic.in/rapelaws.htm#chapter3, [accessed on 20-01-2020]

[23] The Protection of Women from Domestic Violence Act, 2005, Section 3.

[24] The Indian Penal Code,1860, Section 498A.

[25] Editorial, “Denial of sex by spouse is cruelty: Supreme Court “, The Time of India, Sep. 26, 2014.

[26] Marital Rape: Why Government Won’t Criminalise, NDTV, Aug. 31, 2017, available at: https://www.ndtv.com/video/shows/agenda/marital-rape-why-government-won-t-criminalise-466649?yt [accessed on 20-01-2020]

[27] Supra 12.

[28] Supra 12.

[29] Supra 11, pg. 1532

[30] Editorial, National Family Health Survey Underscores Need for Serious Discussion on Marital Rape, The Indian Express, Mar. 15, 2018, available at: https://indianexpress.com/article/gender/national-family-health-survey-underscores-need-for-serious-discussion-on-marital-rape/, [accessed on 20-01-2020]

[31] Ibid.

[32] The Constitution of India, 1950, Article 13.

[33] Supra 17, pg. 14-15.

[34] Supra 12.

[35] Supra 12.

[36] Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802

[37] State of Maharashtra v. Madhukar Narayan Mardikar AIR 1991 SC 207, also see Suchita Srivastava & Anr vs Chandigarh Administration (2009) 14 SCR 989

[38] Sarthak Makkar, “Marital Rape: A Non-Criminalized Crime in India”, 32 HHRJ (2019).

[39] Conventional on Elimination of All Forms of Discrimination Against Women, 1979, Article 1

[40]CEDAW, General Recommendation No. 19 (11th session, 1992), available at https://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm, [accessed on 20-01-2020]

[41]Compendium of International and National Legal Frameworks on Domestic Violence Volume I, International Legal Framework, available at:

http://documents.worldbank.org/curated/en/607171547586076841/text/133765-CompendiumDomesticViolencePt1.txt, [accessed on 20-01-2020]

[42] Supra 40

[43] Universal Declaration on Human Rights, United Nations General Assembly Third Session, Res. 217 on 10 December 1948, Article 3.

[44] International Covenant on Civil and Political Rights United Nations General Assembly. Res. 2200A (XXI), 16 Dec,1966, Article 9

[45] Conventional on Elimination of All Forms of Discrimination Against Women, 1979, Article 5.

[46] Universal Declaration on Human Rights, United Nations General Assembly Third Session, Res. 217 on 10 Dec, 1948, Article, 25.

[47] International Covenant on Economic, Social and Cultural Rights, United Nations General Assembly Res. 2200A, 16 Dec,1966, Article 12.

[48]Editorial, “What About Rape”, The Pioneer, 9th Dec, 2019, available at: https://www.dailypioneer.com/2019/columnists/what-about-marital-rape-.html, [accessed on 20-01-2020].

[49] Supra 17.