Marital Rape in India- A Crime without Consequences

Author: Raonak Ranjan, Army Institute of Law, Mohali

ABSTRACT

......and it was that sindoor and those vows that gave him the liberty to do anything!

Despite ages of development, Indian society still remains backward. The backwards thinking of the people is that a woman remains the property of father till the time she is not married and becomes property of husband after marriage. And with this stereotypical thought, husband gets the full authority to do anything with his wife since she is ‘his’ property, even if he tries to make sexual relation with her forcefully without her will, and this is what is known as marital rape. A rape that happens within the marriage since it is impliedly taken that if a woman has married someone , that means she has given the consent for sexual intercourse. Section 63 of BNS does talk about ‘rape’ but gives exception to marital rape. This article dwells into the current legal status of marital rape and ongoing debates on it presenting both side of the coin i.e. arguments in the favour and against criminalising the marital rape in India.

KEYWORDS

Rape, Marital Rape or spousal rape, Theory of implied consent, consent

INTRODUCTION

Marriage is one of the most enjoyable festivals in the world, especially in India. It is considered the most respectful and sacred bond between two people. It is regarded as the sanctified union of two people and souls. A woman was and till now is considered to be the property: property of father before marriage and property of husband after marriage. And if anyone did anything wrong with her it meant vandalising their property. But if the husband did anything wrong with her , wrong to the extent of making forceful sexual relations with her, was given the exception of the marriage.

This non-consensual sex within the marriage where the perpetrator is husband himself is known as marital rape or spousal rape. And Indian society finds it difficult to understand this concept, “if two person have married each other, how it can be a rape?”

Many countries in the world have criminalised this heinous act but India remains one among those countries who have still not criminalised it. According to the common Law, a wife by the virtue of being involved in the union of marriage with her husband gives an implied consent to the husband to have intercourse with him whenever he so pleases.

As propounded by Sir Matthew Hale in 1736, “The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract”.

This is known as ‘Theory of Implied Consent’. According to this theory , if a man and a woman are in a wedlock then it is implied that the woman has given consent for sexual intercourse with her husband. This theory states that a married woman is property of her husband and is devoid of her identity.

Another theory that aligns with the previous theory is theory by Blackstone which is based on Doctrine of Coverture , which states that husband and wife are single entities and legal status of wife merges that with husband. States have either criminalized it or refrain from criminalizing it because of the public outrage and fear of disturbing the institution of marriage.

HISTORICAL CONTEXT AS TO MARITAL RAPE

Marriage is considered to be one of the pure and respected institutions, so pure and respected that it gives full authority to the husband to do whatever he wants to with his wife. The fact that a man can dominate his wife and nothing can happen to him because there is no moral or legal repercussion for it, and the wife has no say or choice, is evidence of the patriarchal nature of society. Many old writings and customs, including the Manusmriti, have promoted this mindset. The patriarchal system was promoted by these scriptures, which stated that a virtuous woman is one who never does anything that irritates her husband, whether he is living or dead.

It is always said in our society that it is the duty of a wife to never do anything which ‘troubles’ the husband. And furthermore, a lady is instructed to behave in a particular way to appease her spouse. As a result, her position becomes increasingly restricted to taking care of the house, raising children, and complying with her husband's requests.

The text's prescription that a thirty-year-old man should wed a girl between the ages of eight and twelve also further endorses the practice of child marriage. The situation of women in the medieval and post medieval eras remained somewhat the same. When the British arrived and the purdah regime became more common, the situation started to worsen. Along with it came the practice of sati, instances of child marriage, female infanticide, and restrictions on widows' ability to remarry. Women were therefore forced to live in isolation and slavery, with their life being dictated by father or brother before marriage and by her husband after marriage.

In the past, crimes against women, particularly rape, were regarded as crimes or torts of stealing the property of a male (either the father or the husband). This meant that the crime was regarded as harm to the father or husband and was not legally recognized as a crime against the victim, who was a woman.

It is depressing that our society assumes that consent for sexual activity is largely presumed after marriage and that a spouse is immune from rape claims just because they are "married." The fact that even a sacred institution like marriage has been turned into a valid channel for men to indulge their animal impulses in order to undermine their women' self-respect and dignity is another deeply disturbing feature.

VARIOUS REPORTS RELATED TO MARITAL RAPE

The 42^nd law commission report 1971

This commission was made for general revision of IPC,1860. It did discussed about the exception of marital rape and was of criminalizing it. It favored the theory of implied consent where consent for sexual intercourse is deemed to be implied in marriage. It proposed that husbands and wives if are not living together, the marital rape exception shouldn't apply in situations where they were judicially separated. It also suggested that if something like this happens then the husband would be punished with imprisonment for two years which may be even extended to seven years and shall also be liable with the fine.

The 172^nd commission report 2000

Titled ‘Review of Rape Laws’, this report is considered one of the significant step in Indian law system. This report sought to change and reform the backward provisions and laws that promoted the strict patriarchy in India. One of the most pivotal recommendations of this commission was deletion of exception 2 of section 375 of IPC,1870(now BNS) which immunes husband from being held liable for raping their wives .

Section 375 of IPC defined Rape but gave exception to marital rape. This report of the commission was strongly against the theory of implied consent which violated the very fact that consent is necessary in all sexual relationships. The report also mentioned that the existing exception leads to the discrimination between the married and married women on the treatment they receive for the sexual protection, since it violates the article 14 of right to equality and article 21 of right to life and personal liberty.

The report recommended making amendment in the definition of rape, making it more inclusive of the marital rape.

The Justice Verma Committee Report on Amendments to criminal law,2013

The report of the committee continues to be the one of the important source in ongoing legal debates on rape and sexual violence against the women. It is one the important documents which advocates gender neutrality and consent within marriage under Indian law. The committee was headed by Justice J.S. Verma was constituted after the Nirbhaya gangrape case in Delhi (2012).

The committee placed greater emphasis on the urgent need to address all types of sexual violence, particularly those that occur within marriages. It was suggested that exemption 2 under section 375 of the IPC (now section 63 under the BNS) be removed since it gravely infringes upon a woman's sexual autonomy and physical integrity, both of which are essential elements of her right to life and liberty under article 21 of the constitution.

The committee stressed the need for harsh punishment for the accused because a rape is a rape regardless of who committed it. According to the research, all forms of non-consensual sexual actions should be made illegal and the definition of rape should be broadened.

LEGAL STATUS OF MARITAL RAPE IN INDIA

Sexual intercourse with a woman without her willful consent is considered as Rape. But how come this consent is taken impliedly in marriage? Shouldn’t married women be given the right to give consent whenever they want?

The term ‘Rape’ finds its origin from Latin word ‘raptus’ which meant ‘to seize’. women were considered the property of father or the husband. Therefore, any sexual assault or molestation that occurs with a woman is deemed theft of her from her guardian, such as her husband or father.

"Marital Rape," sometimes known as "spousal rape," is the act of having sex with a spouse while using force and without the partner's permission. The interesting thing is that, despite the fact that the majority of nations have recognized its significance and created laws pertaining to it, our country has not even contemplated making it a crime.

Section 375 of IPC provided with the definition of rape and gave exception to marital rape. With coming up of new criminal laws in India, the definition of rape in now mentioned in section 63 of BNS which states that:

“A man is said to commit “rape” if he—

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person ....”

This section gives the exception to marital rape under exception 2:

“Exception 2.––Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape”

Section 63 of BNS provides the punishment for rape,but no where mentions about the punishment for the marital.

If the sex without consent which is forceful is considered rape outside the purview of marriage, then why not it is considered rape within the marriage? After all a rape is a RAPE only no matter who is the perpetrator, the husband or the stranger, he must be punished.

ARGUMENTS IN FAVOUR AND AGAINST OF CRIMINALISING MARITAL RAPE

Criminalizing marital rape in India is urgent need as far as dignity of a woman and her bodily autonomy is concerned. The exception 2 of section 63 of BNS (earlier exception 2 of section 375 of IPC) promotes the outdated patriarchal thought in society and gives free license to them and to treat their wives as property.

Arguments in favour of criminalizing it are as follows:

Keeping marital rape as the exception under section 63 of BNS not only leads to the violation of article 12 of the constitution and promotes discrimination between the married and unmarried woman on the basis of treatment they receive for protection from sexual violence but also violates article 21 (right to life and personal liberty) of the constitution.
Recognizing the marital rape and criminalizing it would be a crucial step towards acknowledging that sexual violence against the woman can happen anytime within any sought of relations.
Criminalizing marital rape would give this strong message that consent is important in all intimate relationships.
Criminalizing it would send a clear message that women should no longer be treated like property and that marriage does not grant a husband the right to treat his wife like a toy and control her in any way he pleases.
Just as rape (which happens outside the marriage), forceful sexual intercourse within the marriage also causes physical, mental and emotional trauma to the wife.

Arguments against criminalizing marital rape are:

Critics are of the view that criminalizing marital rape could lead to false complaints by woman especially in marital disputes, divorce or separation etc.
Some say that when sexual intercourse happens between the couple, it would be very difficult to know whether it was rape or not.
People are of the view point that criminalizing marital rape would disturb the very sacred institution of marriage. It is because of this fear they do not favour the criminalization of marital rape.
Some believe that there is already legislations that protects women from sexual violence such as Protection of women from Domestic Violence Act,2005, POSCO Act etc. Making another legislation for marital rape or criminalizing it would lead to overburdening on the existing system.

CONCLUSION

Changing the law regarding sexual assaults is seen as a challenging and delicate process. In a nation like India, where religious and personal rules are subject to sudden changes and may clash with recent modifications to the statute criminal code, this is particularly true. There is urgent need to criminalize marital rape under BNS. Only when society recognizes and confronts the widespread misconception that a spouse's rape is unimportant will the actual objective of making marital rape a crime be achievable. Therefore, it is essential to inform the public about this crime. The fact that marital rape is not a crime worries the Indian legal system. Married women should not experience sexual assault or violence and should be treated with dignity. Because of this, the definition of sexual assault in this section is extremely limited, and married women are not yet protected by any laws.

It is unacceptable to dehumanize women; having sex with a woman against her will is not a husband's right but rather a cruel and violent conduct that the government must outlaw at all costs. A progressive civilization is created using more than only a certain GDP percentage or economic expansion. Instead, it is a result of both the economy and society expanding. Our nation should follow this course if it wishes to emerge as a superpower.

BIBLIOGRAPHY

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 Kaur and Aayush Tripathi, exception to marital rape in india: an unconstitutional intrusion into the victim’s right to equality and privacy, ili Law Review, Winter Issue 2022

https://ili.ac.in/pdf/14._harleen__F_.pdf