CRIMINALIZATION OF MARITAL RAPE IN INDIA BY - DIVYANSHU VATS

CRIMINALIZATION OF MARITAL RAPE IN INDIA

AUTHORED BY - DIVYANSHU VATS

ABSTRACT-

Rape is unlawful sex without a person’s assent because of physical drive or dangers or due to deceitful demonstration of the perpetrator. There is a different form of Rape that has been recognized and Marital Rape is one of them. The issue of Marital Rape in India is one of the examples of violence against women where the victim suffers both Physically and Psychologically at the hands of somebody close to them. But in India, Marital Rape is not recognized as a crime under the Indian Penal Code, 1860. The Researcher in the present paper focuses on the point that why the criminalization of marital rape should be done in India. The researcher took both Judicial and Societal perspectives to examine whether Marital Rape should be Criminalized in India or not. The method that has been undertaken for this particular research is a doctrinal method this researcher has conducted this research purely through secondary sources by taking the reference of various articles, journals and other sources.

KEYWORDS- Marital Rape, Criminalization, Marriage, Consent, Indian Penal Code, Society, India.

I. INTRODUCTION-

Rape is unlawful sex without a person’s assent because of physical drive or dangers, or due to deceitful demonstration of the perpetrator. In India, rape by an outsider is a penal offence under section 375[1] of the IPC. Further Section 376 talks about the punishment of rape. This section unequivocally avoids marital rape from the ambit of conviction. Marital Rape is sex by the spouse with his better half without her assent or by compel or danger. Rape is not only savagery against ladies but rather a grave infringement of a person's basic ideal of life and individual freedom. Marital rape is not an offence in India. Enactments regarding marital rape in India are either non-existent or esoteric and dependent on the understanding by Courts. Marital Rape as the word in itself defines a kind of sexual violence. Marital Rape is non-consensual that is negation or rejection by one or more parties involved in the act. These non-consensual sexual acts not only include natural sex but also include anal and oral sex, forced sexual behaviour with other individuals and other sexual activities that are considered by the victim as humiliating, unwanted, painful and brutal. Marital rape is a type of domestic violence and sexual assault that occurs while two people are married. Although sexual intercourse within marriage was once considered a right of spouses, many countries around the world now consider it rape, which is condemned by international conventions and increasingly criminalized. Since the second half of the twentieth century, concerns about sexual and domestic violence inside marriage and the family unit, particularly violence against women, have attracted increased international attention. Even so, marital rape is either illegal or generally tolerated in many nations. Due to a variety of causes, including authorities' reluctance to prosecute the offence and a lack of public awareness that sexual intercourse in marriage without consent is prohibited, laws are rarely implemented. According to the National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019 report, about 70% of women in India are victims of domestic violence. One such manifestation of this domestic violence is Marital rape[2]. According to the National Crime Records Bureau’s 2020 data, almost all rape offenders are people who are known to the victim. Out of 20,046 reported rape cases, 2502 were committed by family members, but it is unclear whether they were married to the victim. According to the latest National Family Health Survey, nearly 1 in 3 Indian women aged 18-49 have suffered some form of spousal abuse and around 6% have suffered sexual violence. The United Nations has urged countries to end marital rape by closing legal loopholes saying that “the home is one of the most dangerous places for women”

CONCEPTUAL ANALYSIS OF MARITAL RAPE -

(i) Laws and cases regarding marital rape-

Rape is one of the most heinous and common crimes committed against women. It is the 4th most common crime in India[3]. Section 375 of the Indian Penal Code 1860 says that sexual acts by a man on a woman against her free will or consent would constitute rape. The first exception says that “a medical procedure or intervention shall not constitute rape”. As per the second exception, “sexual intercourse or sexual acts by a man with his wife” when the wife is above 18 years of age would not constitute rape[4]. But, The Supreme Court in Independent Thought v. Union of India[5], held that constitutionally females have equal rights as males and no statute or act can take away those rights from females and if any such law has been passed which takes away this right it will be declared as null and void. Furthermore, the court held that sexual intercourse or sexual act by the husband with his wife below the age of 18 years would result in the commission of rape.  Exception 2 of the Indian penal code gives the husband the right to indulge in sexual activity with her wife even without her consent and will and there is no law to protect women from the same because Marital rape is not recognized as a crime in India. Currently, our law provides the husband free will to forcefully indulge in Sexual activity without her consent. India is one of those few countries which has not criminalized marital rape yet, when will look into the constitution of the country states about equal rights and equal protection[6] but where is this equality when we talk about marital rape. Marital Rape is an act to compel your spouse into having sexual intercourse without her will. This is an unjust way to degrade the value of women in the society. Domestic Violence is a long- and well-established issue in India, and it has only been worse in the past few years. Marital Rape is a form of domestic violence that women suffer in marriage. Rape is a criminal offence in general but only because forceful sexual activity done with a woman while is married by her husband will not amount to rape as it will excessively interfere with the institution of marriage.

The 172nd Law Commission Report's exception clause's legality was a direct concern for the Law Commission. Arguments about the legality of the exception clause itself were presented. in this case during the consultation rounds. When other acts of domestic abuse committed by a husband against a wife were made illegal, it was contended, there was no justification for rape to be exempt from the rule of law. This argument was rejected by the Law Commission because it believed that making marital rape illegal would "excessively interfere with the institution of marriage”[7]. While marital rape is not a criminal act in India, a woman could file a case under other provisions of the Indian Penal Code, such as cruelty, and could also file for a divorce. Section 198(6) of the code of criminal procedure states that there should be no offence taken under Section 376 of the Indian penal code, 1860 where such offence consists of sexual intercourse by a man with his wife, the wife being under fifteen years of age if more than one year has elapsed from the date of the commission of the offence[8]. Marital rape is recognised as domestic abuse under the Protection of Women from Domestic Violence Act, passed in 2005. Under this statute, a woman may use the legal division process to bring a rape claim against her spouse. Because it destroys a woman's love and trust, making her feel uncomfortable and terrified, marital rape is irrational. He must renounce his human rights in the hallowed setting of marriage. On the other hand, the tactics used and the laws safeguarding the rights of victims of marital rape are undesirable and insufficient. Many Judicial regarding the criminalization of marital rape has been come up in the past few years some are in favour of criminalization of marital rape some are not.  

A PIL has been filed in The High Court of Delhi by NGOs RIT Foundation, and All India Democratic Women's Association stating that an exception granted to the husband under the law for marital rape should be struck down. On the question of criminalising marital rape, the Delhi High Court issued a split decision, with one judge favouring its repeal and the other ruling that it was not unconstitutional. The parties were permitted by the division bench to appeal to the Supreme Court. According to Justice C Hari Shankar, the exception under the IPC is not unconstitutional and was founded on an intelligible differentia, in contrast to Justice Rajiv Shakdher, who presided over the division bench and supported eliminating the marital rape provision[9].

For its progressive sentiment and refusal to let the alleged perpetrator of a brutal crime hide behind the antiquated marital rape exception, the Karnataka High Court in Hrishikesh Sahoo v. State of Karnataka[10] dismissed rape charges against a man accused of forcibly having sex with his wife likely to receive praise. The Indian Penal Code's Exception 2 states that any sexual acts or interactions between a husband and his wife are not rape, however, the single-judge bench of Justice M. Naga Prasanna ruled that this exception cannot be absolute. The court said that no exemption in law can be so absolute that it becomes a license for the commission of a crime against Society. It should be noted that the court was clear that it was not striking down the marital rape exception, which it said was the legislature's prerogative. However, it held that in this specific case, where the husband was alleged to have committed brutal acts of forced sex on his wife and kept her as a sex slave, the marital rape exception could not be considered to give complete immunity from the charge of rape to him. The court while delivering the judgment took the reference of Justice Verma’s Committee report which states that the IPC differentiates between rape within marriage and outside marriage. Under the IPC sexual Intercourse without consent is prohibited. However, an exception to the offence of rape exists about unconsented sexual intercourse by a husband upon a wife. The committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts.

In December 2021, the Gujarat High Court issued notice to the Centre and the state of Gujarat in a petition challenging the legality of the marital rape exception. “It is high time” that a constitutional court decided if this exception impinged on a woman’s fundamental rights, it said[11]. In August 2021, the Kerala High Court held that even if marital rape is not treated as rape within the penal code, it could be grounds for divorce.

Although marital rape is not considered to be an offence, the Protection of Women from Domestic Violence Act was passed in 2005 to give women legal protection in cases of domestic violence. However, under this act, if a woman is a victim of marital rape, she may still apply for judicial separation from her husband. This suggests that marital rape may be used as a basis for obtaining judicial separation from her husband under this act, Additionally, Section 376B of the IPC stipulates that a husband who coercively engages in sexual activity with his wife while they are living apart, regardless of whether there is a divorce decree in place or not, will be sentenced to a minimum of two years in prison and a maximum of seven years in prison[12].

Supreme Court has listed a batch of petitions for 9/05/23 that question the constitutional validity of the marital rape exception given under the Indian Penal code. These petitions were scheduled to be listed before a bench comprising Chief Justice of India DY Chandrachud, Justice P.S Narsimha and Justice J.B Pardivala. The petitions listed include mainly four kinds of matters. First against the Delhi High Court spilt verdict on marital rape exception. Second, it includes PIL filed in the supreme court against the marital rape exception. Third is the plea challenging the Karnataka High Court judgment which upheld the charges framed against a husband under section 376 OF IPC for indulging in sexual intercourse with his wife without her consent and all other intervening applications have also been included in this batch of petitions.

(ii) Whether Marital Rape Should be Criminalized in India –

Women’s voices are silenced in a patriarchal society based on marriage. Making marital rape a crime, according to former Chief Justice of India Dipak Mishra would cause complete anarchy in families and our country’s survival depends on the family platform, which upholds family values[13]. Marital rape cannot be criminalized due to existing traditions and social values. According to the Indian government, those who try to prevent women from being raped by their husbands are following Western countries’ lead[14]. These are some of the main contentions that have been put forward as the reason for not criminalising marital rape in India. We talk about social values and that marriage is a sacrament and criminalising marital rape is not good for society. The researcher would like to put forward a question that which social values state that women should face violence in the form of marital rape while she is married or any form of violence. The value that prevails in society is that an individual should respect women but forcing a woman to involve in sexual activity without her consent is not the value and respect we need for society.

The marital rape exception under Section 375 of the Indian Penal Code (rape) was unconstitutional because it unfairly targeted married women who are sexually attacked by their husbands. A man having sexual relations or engaging in sexual acts with his wife, who is not a minor, is not committing rape under the exception stated in Section 375 of the IPC. It violates Articles 14 (Equality before the law), 15 (prohibiting discrimination based on religion, race, caste, sex, or place of birth), 19(1)(A) (right to freedom of speech and expression), and 21 (right to life and personal liberty). Article 14 of the Indian constitution guarantees equality, and marital rape discriminates against a woman who has been raped by her husband by denying her equal protection from rape and sexual harassment. When the Delhi High Court heard a PIL calling for the criminalization of marital rape, Justice Shankar supported this argument. The Supreme Court associated the right to make choices and consent related to the sexual act with the rights to personal liberty, privacy, dignity and bodily integrity under Article 21[15]. Life with dignity is an important aspect of Article 21 so the legislature should remove the exception of marital rape so that women are not precluded from living a dignified life.

The Supreme Court of India in the case of Bodhisattwa Gautam v. Subhra Chakraborty[16] stated rape is “the most hated crime”. The court held that rape is a crime against the entire society. It destroys the entire Psychology of a woman and pushes her into deep emotional crises. The rape laws do not unfortunately take care of the societal aspect of the matter and are inept in many respects. It’s high time that marital rape should be criminalized legislature should take cognisance of this legal infirmity, as this violence not only affects the women physically but it also affects them mentally. Women are there to live a dignified and prosperous life, not a life where they face violence. As there are contentions which have been put forward that criminalizing marital rape will be an infringement on the private affairs of a married couple but already there are several other enactments like the Protection of Women from Domestic violence act is there which is there for women protection of Women from domestic violence, and as marital rape is also a violence that has been faced by women so why not to criminalise this and take action against this violence.

The United Nations Declaration on the Elimination of Violence against Women defines  violence against women as “any act of gender-based violence that results in, or mental harm or  suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty,  whether occurring in public or private life.”21 In 2013, the UN Committee on Elimination of  Discrimination against Women recommended that the Indian government should criminalize marital rape From the societal perspective if we see then Marital rape cases are mostly not reported. Some people even do not have any knowledge about marital rape. The sad part of such a barbaric crime committed against a woman is, though her family knows about it she is advised to stay, hardly anyone comes forward to report the same and in the end, we often lose a soul which is innocent. It destroys a woman’s mental health in all these issues, she gets traumatized day and night, for weeks and months, judged by society if she takes any step to protect herself or is seen to be a woman who disobeys her husband. Marriage in Indian society has been a concept of values and virtue and since time immemorial it has been associated with sexual intercourse. Often as kids, we acknowledge morals and think to ourselves that reproduction is only possible after marriage, and often we hear people joking about how one should indulge in sexual activities only after marriage. But this reflects how marriage is viewed from a social perspective and reflects the nature of our values and virtue that we brag about.  This concept of bearing kids creates the subconscious pressure in wedlock and thus results in forceful sex. This also creates toxic and unhealthy relationships and often parents think reproduction will fix the marriage if it isn’t working. The pressure of bearing kids is however only one of the reasons that may amount to marital rape. It majorly revolves around the mindset of men and masculinity. Men always have the presumption that they must be “manly” and make the first move. They think that once they are married, which is the epitome of a contract, they have ownership over their wives; that they can treat them like a piece of meat. I have often heard men preparing the groom for his first night after marriage and telling them how he must be manly and make the first move and indulge in sexual intercourse whenever and however he likes as he has a wife now. The word wife is synonymous with a slave in the social sphere. Men think that after marriage they have a license to do everything they please to their wives. It is not just the sexual intercourse that amounts to marital rape, be it the husband masturbating while touching the wife, or trying to get into her mind every night to have sex or try to touch her when she is asleep. A major problem is the lack of communication, which reflects illiteracy and parents' negligence. Marital rape is prevalent majorly in orthodox and rural families and often goes unnoticed and underreported. The husband not being able to communicate results in non-consensual sex. And the wife is always left helpless at the hands of her husband and her in-laws as well, due to illiteracy. It has been a prevalent custom that husband and wife must have sex at the earliest after marriage and just get done with it like it is a compulsion. This view of compulsion makes the woman passive towards it and thus allows it despite it being against her will. This mindset of men is also added upon by his parents who might pressure him to bear kids and preserve their bloodline and descendants. This often deprives women not only of their sexual autonomy but also of basic rights and needs and might lead to self-harm. The women however are left helpless and often stay passive as they fear their husbands getting violent or their problems leading to a failure of marriage which would in turn look bad on their family name being a woman. It is difficult for a woman to voice her concerns regarding marital rape in a social and marital sphere and it is shameful for men to overlook it. Women should be happy in their married life they should not face violence.

CONCLUSION –

 Marital rape is nothing but sexual activity between married couples without the wife’s consent, it has not been criminalized in India but it’s high time that the criminalization of marital rape should be done. The problem of marital rape is crucial for guaranteeing equality for married women who would otherwise be disregarded and made to suffer inside of their homes. Marriage should not be a license for a husband to treat his wife in the manner he wants. This provision also violates fundamental rights that have been provided under the constitution of India. With the rate at which the violence is increasing in the past few years to keep women at their matrimonial homes criminalization of marital rape should be done. There are other enactments like the Protection of Women from Domestic Violence Act, 2005 under which women can take get protection from this violence but now it’s time that the marital rape exception should be removed.

REFERENCES –

• Vidhik Kumar (2021) in Marriage or License to Rape? A Socio-Legal Analysis of Marital Rape in India,        https://www.researchgate.net/publication/352754710_Marriage_or_License_to_Rape_A_Socio-Legal_Analysis_of_Marital_Rape_in_India
• Raquel Kennedy Bergen, Elizabeth Barnhill (2006) in Marital Rape: New Research and Directions, https://vawnet.org/material/marital-rape-new-research-and-directions
• Monica Steiner in Marital Rape Lawshttps://www.criminaldefenselawyer.com/marital-rape-laws.html
• Lauren Frayer (2022) in Marital rape is still legal in India. A court decision could change that,

           https://www.npr.org/sections/goatsandsoda/2022/02/08/1047588035/marital-rape-india 

• https://www.google.com/amp/s/www.thequint.com/amp/story/news/law/delhi-hc-marital-rape-exception-j-sai-deepak-arguments-retain-exception-2-rk-kapoor
• https://www.google.com/amp/s/www.indiatoday.in/amp/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-22
• https://www.google.com/amp/s/www.thequint.com/amp/story/news/law/karnataka-hc-marital-rape-order-reasons-effect-as-precedent-analysis
• https://www.google.com/amp/s/blog.ipleaders.in/marital-rape-in-india/%3famp=1
• https://www.google.com/amp/s/amp.scroll.in/article/1015495/explainer-why-is-marital-rape-not-a-crime-in-india-and-can-the-courts-make-it-one
• https://www.google.com/amp/s/amp.scroll.in/latest/1016463/marital-rape-exception-is-archaic-has-no-place-in-a-just-order-lawyer-karuna-nundy-tells-delhi-hc
• https://www.criminaldefenselawyer.com/resources/criminal-defense/crime-penalties/marital-rape.htm
• https://www.ojp.gov/ncjrs/virtual-library/abstracts/marital-rape-exemption-legal-sanction-spouse-abuse
• https://www.google.com/amp/s/www.nytimes.com/2019/04/13/us/marital-rape-law-minnesota.amp.html
• Luhrmann TM. Evil in the sands of time: Theology and identity politics among the Zoroastrian Parsis. J Asian Stud. 2002; 61:861–89.
• Anirudh Pratap Singh, Criminalize Marital Rape In India: Marriage is not a License to Rapehttp://web.archive.org/web/20210117023709/https://counterview.org/2020/12/21/criminalize-marital-rape-in-india-marriage-is-not-a-license-to-rape/
• https://www.ijlmh.com/paper/marital-rape-license-to-rape-or-not/#
• Garg, Shivani. 2012. “Marital Rape.” SSRN Electronic Journal https://doi.org/10.2139/ssrn.2152311.
• Dube, Dr Dipa, and Dipa Dube. 2006. “License to Rape: The Indian Viewpoint.” SSRN Electronic Journal.  https://doi.org/10.2139/ssrn.888964.

[1] Sec. 375, Indian Penal Code 1860, Rape- A man is said to commit “rape” who, except in the case hereinafter

excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: -

First -Against her will.

Second- Without her consent.

Third- With her consent, when her consent has been obtained by putting her or any person in whom she is

interested in fear of death or of hurt.

Fourth - With her consent, when the man knows that he is not her husband and that her consent is given because

she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifth - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or

intoxication or the administration by him personally or through another of any stupefying or unwholesome

substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixth- With or without her consent, when she is under sixteen years of age

[2] National Crime Records Bureau’s, https://ncrb.gov.in/

[3] Women laws India, http://www.womenlawsindia.com/legal-awareness/crimes-against-women/

[4] Sec.375 exception 2, IPC, 1860

[5] (2017) 10 SCC 800

[6] Article. 14 of The Constitution of India, 1950

[7] http://www.lawcommissionofindia.nic.in/rapelaws

[8] Sec. 198(6) Code of Criminal Procedure, 1973

[9] RIT Foundation vs The Union of India, 2022

[10]Writ petition no.48367 of 2018

[11] https://scroll.in/article/1015495/explainer-why-is-marital-rape-not-a-crime-in-india-and-can-the-courts-make-it-one

[12] Section 376B of The Indian Penal Code, 1860

[13]https://primelegal.in/2022/05/31/marital-rape-in-india-can-it-be-criminalized/#:~:text=In%20India%2C%20rape%20in%20a,Indian%20Penal%20Code%20(IPC)

[14] https://theswaddle.com/marital-rape-inda-decriminalized-crime/ 

[15] Suchitra Srivastava v. Chandigarh Administration (2009) 14 SCR 989

[16] AIR 1996 SC 922