Marital rape: A need for legal recognition

Author: Charu Seth, Bharati Vidyapeeth University, New Law College, Pune

The article seeks to highlight the gravity of the offence of marital rape and its repercussions to the society. The article does not intend to shake the faith and belief of people in the institution of marriage but tries to create awareness regarding the seriousness of offence as it scars the physical and emotional health of the woman. Further, the article tries to summarize various discussions and bills of the Parliament which were drafted to bring about a reformative law for the recognition of Marital rape. The article also brings forth the various decisions of the respected High Courts favoring the criminalization of the offence and realizing the need of the statutory guidelines for the welfare and protection of the privacy and integrity of women. 

The inclusion of marital rape as a ground for divorce is necessary so that the number of such cases are ascertained and these atrocities be addressed, only then the genuine dilemma of the woman in society be curbed.

The creation of law for the criminalization of this offence is the main aim and objective of the article. The article finds that the exception in rape clause be deleted so that inequality is abolished and the constitutionality of the law is maintained. The findings of this article will have important implications for both the policymakers and individuals as it would provide valuable insights relating to the seriousness of the offence.

Keywords - rape, property, immorality, consent, constitutionality, criminalization, spouses, physical intercourse, fundamental rights.

Marital rape refers to the act which poses grave injury to the woman not only physically but both emotionally and mentally. It is the forced sexual intercourse done without the consent of the wife. It may be any act of penetration or any oral, and anal abuse to which the other partner resents. The act is no different from that of the actual rape, the only difference, here, is that the partners are subjected to forced proximity and hence the offence goes overlooked and is viewed as legally valid. Despite the constitutional and statutory legal framework, this act is not punishable and it is protected under the exceptions provided in the offence of rape.

The European Commission on Human Rights in the case of C.R. v U K held that a "rapist remains a rapist regardless of his relationship with the victim."

The offence is made punishable in 52 countries around the world, acknowledging the brutal nature of the act. The institution of marriage tends to shadow the individual identity of a woman as the other partner tends to assume their authority upon her. Marriage is deemed to be a license for consideration that there is an implied consent for the performance of the perversion. Moreover, the exclusion of criminal laws in personal matters acts like a shield for obscuring heinous offenses.

The reasons for protecting the offence are multitudinous, so as to protect the virtue of marriage. As per Manu smriti, the only way to salvation for women was marriage. The customary practices, beliefs and the faith of people regarding these traditions are so promising that these offences are excused and the dignity of women is compromised every now and then. There is an urgent need for the law commission to frame the appropriate laws for and provisions so that the constitutional morality prevails over the social immorality.

In the early 1900 BCE, in Babylonia, sexual intercourse with anyone's wife or daughter was punishable with death. It was believed that a daughter or wife is a property of a father or husband. Rape was considered as a 'Property Crime' by many countries. In the 1700's during the British empire rape laws were introduced but it was brought with a view that rape violates the sexual purity of woman and, thus, was considered as a crime. Later, the cases of rape started to increase and hence it was the responsibility of the father or husband to protect the woman, since they cannot protect themselves and hence this was known as doctrine of coverture. 

Later on, the Indian penal code 1860 was drafted in India which contained a separate section for rape but marital rape was nowhere to be recognized.

Rape is punishable under section 63 of the new B.N.S., but the exception clause (2) states that "sexual Intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.". The inclusion of this exception clause gives a further way for discrimination against the woman and the violation of their privacy and dignity.

i. 42nd Law Commission Report:

The report gave two important recommendations that during the course of judicial separation, if sexual intercourse is done without the consent of the woman, then it would be made punishable u/s 67 of the B.N.S. It was added in IPC earlier by the Criminal Law Amendment Act of 2012. The second one was relating to the women aged between twelve and fifteen regarding the non-consensual sexual intercourse. Although it would not be termed as rape but punishment was to be awarded. 

ii. 172nd Law Commission Report: 

The arguments were mainly made for the validity of the exception clause itself. However, the conference believed that the "criminalization of marital rape would lead to an excessive interference in the institution of marriage."

iii. 167th report of the parliamentary committee on the Criminal law amendment bill, 2012

The lawmakers believed that this is a family affair and no separate legislation should be drafted. It could be dealt under section 498A of the IPC and various other statutes which are already existing favorable to the rights of women.

iv. Justice J.S. Verma Committee Report on Amendments to Criminal Law, 2013

The suggestion made by the members was to delete the exception clause and recognize the offence of marital rape. Women are not supposed to be the chattels of men in the world and were never supposed to be. The modern concept of law and marriage should be given an upper hand and the recognition of this law in some other jurisdictions should be considered as a step towards the adoption of a national non- discriminatory progressive legislation. It also suggested that the relationship of the victim is immaterial to that of the offender. 

v. Parliamentary Discussions

The Discussion relating to marital rape have been inconsequential and trivial. However, in 2018 Woman's Sexual Reproductive and Menstrual Rights Bill 2018 which was proposed by Mr. Shashi Tharoor, the Lok Sabha member from Trimvanthpuram for the abolition of the exception clause (2) of section 375 IPC, the bill did not pass the initial stage of discussion and is still left pending in the Parliament.

Article 14 of the Indian Constitution guarantees to its citizens equality before law and equal protection of laws. In the landmark judgement of Chiranjit Lal v Union of India, the court held, that people who are similarly situated should be treated equally and laid down the principle of intelligible differentia which means that there should be a reason for difference which could be based on knowledge and reasonable nexus between the object which is sought to be achieved. Categorization of married women from the unmarried one should be done as there exists a great difference in their physical and mental lifestyles, but the argument was rejected and, hence, the exception clause was not deleted as the women in general are treated only on the basis of their gender itself. 

A progressive decision was taken in 2018 by the Gujarat High Court in the case of Nimeshbhai Bharatbhai Desai v state of Gujarat. Justice Pardiwala held that exception 2 of article 375 IPC was unconstitutional and it violated article 14 and 21 of the Constitution.  Justice JB Pardiwala said that, " a wife is not a chattel and a husband having sexual Intercourse with his wife is not merely using a property, he is fulfilling a marital duty with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing his wife to engage in a sexual act without her full and free consent." 

In the case of Sakshi v Union of India in 2004, the issue raised in the case was," why sexual Intercourse without the consent of the wife is not considered to be a punishable offence?" 

The Supreme Court in this case upheld the definition of section 375 and said that no alteration is to be done in the section. In Independent thought v union of India, 2017 the argument raised was regarding the age of the exception clause (2) from fifteen to eighteen years of age as it posed inequality according to the POCSO Act since sexual intercourse with a child is prohibited up to the age of18 years. It did not say anything about adult marital rape but the decision focuses on the protection of the woman from these offences committed either directly or indirectly.

The remarkable decision of the Supreme Court in state of Maharashtra v Madhukar Narayan Mardikar given by Ahmadi C.J, that even if a woman accepts " dark sides of her life" she is entitled to her privacy which no one can pervade according to his whims and fancies. 

The Supreme Court in the case of K. Puttaswamy v union India held that the right to privacy is a Fundamental right under article 21 of the constitution.

The liberty to exercise personal liberty is included under the ambit of privacy, and the exercise of freedom with dignity and integrity are included in the right to privacy as well. Similarly, the right to bodily integrity of a woman should rely upon her and it should not be subjected to the wishes of the husband. 

Although there are no laws for the criminalization of marital rape in India, but the offence should be acknowledged and should be treated as a valid ground for divorce. Curbing it under the definition of cruelty, would not suffice much in the existing society. The Kerala High Court held that the autonomy of a human being is paramount even in the case of marriage. The Kerala High Court in 2021 viewed this to be a valid ground and hence contributed further to the growth of the subject's jurisprudential aspect. 

The experts suggest that it remains a highly underreported crime even in regions with laws against it. There are many different circumstances in which marital rape can occur just as with other forms of rape. There is plethora of reasons why marital rape is not reported or prosecuted. Some partners are afraid of their spouse or unwilling to leave a marriage due to financial instability, the presence of children or religious doctrine. Others hold the belief that marital rape cannot exist and it is the right of a married person to use force if sex is refused. Another reason may be lack of evidence that may occur with a marital sex crime or that conflicting stories about the incident may render prosecution useless, marital rape is considered a serious and widespread crime despite, the presence of legislation and attempts to educate the public.

In such a situation where it is so difficult to report the crime, if the act is acknowledged as a ground for divorce, it would be much easier and convenient for the victim to at least initiate the process of separation and may even get the remedy and relief against the brutality which has been subjected to her.

 According to statics released in 2009 by the US department of Justice 41% of female rapes and 5% of male rapes in the United States were perpetrated by an intimate partner such as spouse considering that some experts suggests that only one out of three marital sex crimes are reported.

Effect of the marital rape on women 

• Psychological disorders which may include trauma related issues such as anxiety, PTSD, flashbacks and nightmares.

• Depression

• Low self-regard and confidence 

• Lack of trust 

• Early and unwanted pregnancy, increased risk of infant and child mortality 

• Undernutrition and malnutrition 

Status of marital rape in India 

As per the United Nations Population Fund Survey, 2000 there are more than two-thirds of the Indian married women who are subjected to violence and coercive physical contact. 

The 2011 survey revealed that one in five men in India force their partner to have sex. It is also reported that these cases arise most often when the partner is intoxicated and is in control on his own. These cases go unreported since the act is not yet considered a crime.

The United Nations has declared marital rape as a violation of human rights in the declaration of violence against women. 

The patriarchal mindset and norms have led to injustice and differential treatment meted out to women. There is a gross violation of the fundamental rights and it is a shame for the country not to recognize rape in its full form. Considering the shift in society, the amendments are the need of an hour so as to curb the exception clause of rape stating that," Sexual Intercourse done with the age of 18 years without her consent is termed as rape." This difference of age should be removed and it should be a uniform rule for women belonging to all age groups and different socio-economic backgrounds. Due to the absence of such legislation, the appropriate data cannot be ascertained leading to such cases. 

Marriage, as per the Vedas, is a sacred union viewed as a means to fulfill Dharma (righteousness), Artha (wealth), Kama (desire), and Moksha(liberation). It poses a great responsibility upon the spouses, especially the woman. The purity of this institution is abused when the women themselves are not safe at their own place. The perpetrators should be well aware of this heinous crime and its consequences so that the existing sexual assault is nowhere to be committed and it is possible only when a strict application of the related laws is enforced. Education and awareness on such topics should be widespread among the masses for the buildout of society and for achieving the higher ends of justice and equality. 

Statutes Referred 

• Constitution of India 

• Indian penal code, 1860 

Websites referred

• Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of Marital Rape in India: Understanding its Constitutional, Cultural and Legal Impact, 11 NUJS L. Rev. 1 (2018), https://nujslawreview.org/wp-content/uploads/2018/01/11-1-Raveena-Rao-Kallakuru-Pradyumna-Soni.pdf 

• Harleen F., Exception to Marital Rape: A Critical Analysis, ILI Law Review (Winter 2022), https://ili.ac.in/pdf/14.harleenF.pdf