CRIMINALIZING OF MARITAL RAPE: A LEGAL STUDY

Shatakshi Gauriar, Student, Ramaiah College Of Law

Abstract

Marital rape is not recognized as a crime in only 32 countries in the world. Sadly, India is one of them. Indian Penal Code, of 1860 fails to categorize this cruelty that a husband can exercise on his wife as a crime. The reason this debate has been quite persistent in recent times suggests that how this law or rather lack thereof is wholly unconstitutional and is just another erogenous example of living in a patriarchal society. This article will try to explain why the criminalization of marital rape is extremely pertinent and is the right step toward creating an inclusive, healthy, and prosperous society. This article will suggest some well necessary changes which should be amended in the sphere of law, justifying the need to criminalize marital rape from a legal standpoint.

Introduction

The law in India states that consent is not a compulsion between a married couple, particularly for women. The premise of marriage gives a man supreme immunity to ignore the boundaries of consent when it comes to marital relationships. This notion arises from the age-old hypocritical thinking of women as the property of their husbands and not their separate entities. Considering this mentality persists in our society, the law fails to see the harrowing consequences that women might face in their marriage.

Marital rape is when the perpetrator is the spouse who commits rape, the meaning of rape will remain the same in this scenario as well. Article 375 of the Indian Penal Code recognizes rape as an act committed by a man on women. Article 14 mentions equality before the law and prohibits unreasonable discrimination, which certainly doesn’t exist if you are married to your perpetrator in this case. The Marital Rape Exception (MRE) in India is a provision in the Bharatiya Nyaya Sanhita (BNS) that excludes non-consensual sexual intercourse between a husband and wife from the definition of rape if the wife is over 18 years old.

This exception creates an ideal legal sphere where fundamental rights don’t exist. The whole perception is that when a woman is married to a man, she is a servant to his demands, and is not liable to reject his needs or put her anatomy above his. This total lack of helplessness is not objected to and in fact, protected by this law to protect the marriage. The question arises as to when do you consider that marriage successful when one person is fighting for her basic right, isn’t the marriage already lost its spirit?

Current take on criminalization of marital rape in India

The most recent stand of the Indian government regarding the criminalization of marital rape is quite regressive, according to the affidavit filed in the Supreme Court Of India, the Centre put forward their thoughts calling this  “excessively harsh” opposing the petition which aims to rectify and change the law created under Colonial era which claimed that rape cannot exist between a man and a wife hence marital rape is null and void.

India’s ministry stated, “A husband certainly does not have any fundamental right to violate the consent of his wife, however, attracting the crime like ‘rape’ as recognized in India to the institution of marriage can be arguably considered to be excessively harsh.”

They also argued that while a man should be liable for his actions but introducing marital rape “may seriously impact the conjugal relationship and may lead to serious disturbances in the institution of marriage.”

Our government argues that there are already various legal protection granted to a woman, such as the Protection of Women from Domestic Violence Act, 2005 hence there seems to be no need to introduce marital rape in this equation which will make this even more complicated. They also argue that proving marital rape is tough and will become a burden on the legal system. They called marital rape more of a social problem than a legal one which will directly impact our society.

Marital rape is criminalized in over 100 countries in the world, it is disheartening to see India not being among one of them. According to NFHS (National Family Health Survey) data on married women aged 18-49, almost 83% have experienced some degree of sexual violence at the hands of their current husband. In comparison, 13% identified their former husband as the perpetrator.

4% of the women were forced by the husband to enter into sexual intercourse, 2.1% to perform sexual acts, and 3% were threatened when the wife did not want to or wish to perform, as per the report, NFHS. This report was published in the recent year of 2016-17. Latest figures from the National Crime Records Bureau show that a crime was recorded against women every three minutes. Every hour, at least two women are sexually assaulted and every six hours, a young married woman is beaten to death, burnt, or driven to suicide.

With such an appalling figure, our government’s stance on the criminalization of marital rape impels us to ask questions. Our society has always encapsulated this notion that being raped is “worse than death” and is the single most horrible thing a woman can go through, then why does this notion is void when the perpetrator is her husband? Why no law is willing to interfere with the institution of marriage? Earlier rape was only subjected as a crime because it dragged against a man’s honor who was unable to protect his wife’s chastity. It was not a crime against a woman.

Let’s examine a few cases to understand this more clearly:

In the case of Nimeshbhai Bharat Bhai Desai vs. The State of Gujarat, stated that marriage is not a concept that was improvised by global media but a real threat to a woman’s honor and dignity, also stating that the notion of ‘implied consent’ within a marriage is outdated and ex-crematory and should be collapsed.

During Nirbhaya Case, 2012 a committee was established namely Justice Verma Committee, which opposed marital rape and suggested criminalizing it stating that marriage does not give irrevocable consent to a man. Even then The Government Of India did not pay attention and ignored this suggestion.

In the case of Anuja Kapur vs. Union of India Through Secretary, 2019, a PIL filed by Anuja Kapur addressed the Government Of India to release some strict guidelines on marital rape. But the bench refused to indulge this petition and rejected it on the basis that the making of laws and policies resides with the legislature itself and is not the job of the judiciary. The judiciary is there only to interpret the law established by the legislature and not to formulate its own opinion.

In the case of Harvinder Kaur vs. Harmander Singh4, The Delhi High Court stated that no constitution should intervene in a private matter of a household, that since this is between a husband and wife, no article is liable enough to breach this harmony hence marital rape cannot be enforced in such matters.

So far from what we have gathered, there has been a mixed response from the judiciary itself, there is no surprise that without any proper law no authority can make any decision and it depends on a particular person to do justice if any. This lack of interest clearly does not hold them accountable since no law is governing their judgment, in this case victim is purely dependent on the merit of the current bench and nobody else. This lack of law marks a room of error and cannot even be rightfully challenged since it depends on a person to interpret the current jurisdiction and provisions to deliver verdict.

Why marital rape should be criminalized?

Article 14 states that anybody regardless of their gender, caste, and creed should be treated equally before the law and no division of law should be applied so that everyone can be guaranteed to be protected by the law. The state cannot discriminate and is liable to bear the consequences if they do.

Marital rape is a clear violation of Article 14 as a married woman is not contemplated as a separate entity in the legal body, the non-consensual victim is the marriage is a married woman. This exemption within rape law governing in India differentiates between a married and an unmarried woman which is against the provision of Article 14.

The reason why the government is so adamant about not admitting the truth is that they claim marital rape will disrupt the sanctity of marriage and Article 14 should not apply in such cases even though they do admit that a husband cannot violate a fundamental right of his wife. But such hypocrisy has always persisted and it is of no disbelief that classical notion is still being followed even after 78 years of India’s independence from British rule and law.

Article 21 guarantees the right to life and personal liberty. The meaning of this has been stretched by the Supreme Court in their earlier judgment and is not subjected to just the literal meaning of the Article. The right of sexual infringement is also considered the right to privacy, for a person to have an ability to remove or excuse themselves from any such situation is their fundamental right. The most recent example of this was in the case of ‘Justice K.S. Puttaswamy (Retd.) vs. Union of India’, the Apex Court of India acknowledged ‘the right to privacy’ as a ‘fundamental right of all citizens under Article 21’ & adjudged that the right to privacy embraces “decisive privacy contemplated by an ability to build intimate decisions mainly comprising one’s sexual or reproducing nature and decisions regarding intimate relations.”

The judgment here does not discriminate so why should any law discriminate between a married and an unmarried woman? If this amounts to any truth then there is a clear violation that this exemption creates. The nature of this law is then contradictory as it challenges a woman’s right to privacy and life based on her marital status. Moreover, article 21 also states ‘right to life’, here this exemption for a married woman threatens her right to live with dignity since it does not dissuade a man from having his right of proximity under the disguise of marriage.

When talking about India’s standing on the criminalization of marital rape, we have to talk about India’s position in the United Nations on this issue. India is a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which views marital rape as a violation of human dignity.

CEDAW explains that any provision in any way constrains a woman’s right to live as a normal citizen is against the nature of law and equality. It threatens the very pillar of society by restricting a woman to exercise her free will and marital rape is one such way where a woman’s right to live with dignity is under scrutiny.

CEDAW also mentions that violence against women is anything physical, sexual, or mental that hampers her way of living creating a peril in her lifestyle. By this they do not discriminate between a married and an unmarried woman, hence they do not believe that marriage gives any right for a man to use his wife as a sexual vessel subjected to his needs and desires.

As India is a signatory with CEDAW, India is obligated to follow the guidelines and criminalize marital rape according to International Human Rights Law. Although India claims to have manifold provisions which they think can work as a substitute the hard truth is that without proper jurisdiction to oversee marital rape, any judgment regarding this matter is more upon the goodwill of the bench and less upon the provisions in the judiciary.

Conclusion

Marital rape is a horrendous act which should be penalized by the law. The prevalent debate on the criminalization of marital rape is crucial as sensitivity regarding this topic is utmost. There is no hiding the truth that marital rape is something that is happening in India and legal ambiguity on this topic is providing a safe way for the perpetrator to walk free from the cusp of law.

Consent over your bodily anatomy is a basic human right and should not be denied to anyone, married or unmarried. Marital rape confines a woman from living a life of dignity which violates Article 14 as well as Article 21 of the Indian Constitution. Criminal law should interfere with this situation of injustice that is prevalent in our society, fundamental rights are for all and are not based upon one’s marital status. Therefore, this is high time that the government took a step back and let the justice be same for all, we have to remember that cultural, and political views are insignificant if they discriminate against a specific group or body.

We highly recommend for the Exception Clause be removed and changes in the Evidence Act to take into account the complexities of evidence regarding marital rape. Every perpetrator is the same and should be measured based upon the crime they committed and their relationship with the victim should not be taken into account.

References:

1.  Dr. Payal Thaorey  Shikha Gupta, CRIMINALIZATION OF MARITAL RAPE – A LEGAL ANALYSIS, PIMPRI LAW REVIEW JOURNAL, VOLUME 2 ISSUE 2 2023 https://law.dypvp.edu.in/plr/Publication/all-publication/Research%20Paper-%20Payal-Thaorey.pdf
2. Raveena Rao Kallakuru & Pradyumna Soni, CRIMINALISATION OF MARITAL RAE IN INDIA: UNDERSTANDIN ITS CONSTITUTIONAL, CULTURAL AND LEGAL IMPACTS, NUJS LAW REVIEW (JANUARY-MARCH 2018)https://nujslawreview.org/wp-content/uploads/2018/01/11-1-Raveena-Rao-Kallakuru-Pradyumna-Soni.pdf
3. Parvati Benu, Marital rape: Most married women are sexually abused by their husbands, says NFHS data , The Hindu Business Line (16 May, 2022) https://www.thehindubusinessline.com/data-stories/data-focus/marital-rape-most-married-women-are-sexually-abused-by-their-husbands-says-nfhs-data/article65409875.ece
4. Vijaykumar Harbishettar , Suresh Bada Math, Violence against women in India: Comprehensive care for survivors, National Institute Of Health (NIH) (August 2014), https://pmc.ncbi.nlm.nih.gov/articles/PMC4216486/
5. Article 14 Of Indian Constitution
6. Article 21 Of Indian Constitution