December 2, 2020

Criminalising Spousal Rape in the Country

INTRODUCTION

India is a patriarchal society. Women are always considered subjects of oppression even by the ancient texts like Manusmriti. It says that women are impure, do not have any individual identity and should always be dominated by their husbands. The institution of marriage and family has always been seen through these lenses. They are considered so sacrosanct that it is acceptable to construct them on flawed ideas like subjugation of women. The perception prevalent in the society of an ‘ideal’ woman is that who is docile, shy, and submissive. She has to agree to his every whim and fancy. In light of the same, women often have to engage sexually with their husbands without their consent. They are considered to be the chattel of their husband and thus, merely used as a tool of sexual gratification. Thus, it is time that we transgress the boundaries of the flawed colonial law and criminalize marital rape. Marital rape is an act of non-consensual intercourse between the spouses. However, the discourse cannot be limited to rape of women by their husbands. It often goes unreported but there are instance of men being raped by their wives. Therefore, rape laws should be made gender neutral in the country.

ARE MEN ALSO VICTIMS OF RAPE?

Yes, men too are victims of rape! The legal framework in the country only penalizes men for the crime of rape. Data for the same is inadequate because the cases go unregistered. There is no legal protection which can be sought by either men or women above the age of eighteen years in case of spousal rape. We have only come across tales of men who were victims of sexual assault in the hands of their wives. Patriarchy always had a direct negative impact on women, therefore, the indirect adverse consequences on men are often ignored. It creates a rigid dichotomy of gender roles.[1] The dichotomy is that men are supposed to be physically strong, unemotional, dominating and dictating towards their wives. It creates a stereotype where men are encouraged to be sexual aggressors. Thus, the connotation that men too are victims of rape is never conceived.

PROVISIONS AND LOOPHOLES OF LAW:

Section 375 of The Indian Penal Code, 1860 defines the offence of rape and lists down various grounds and exceptions to the same. Exception II to Section 375 makes marital rape non-punishable. It exempts a man who rapes his wife who is not below the age of eighteen years.

This exception can be attributed to Sir Matthew Hale, C.J., in 17th century England. He wrote:

“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 herself in kind unto the husband, which she cannot retract.”[2]

It was increased from fifteen to eighteen years by the apex court in Independent Thought v. UOI & Anr[3]. There are two major loopholes in Section 375 of IPC. First, the entire section is gender-biased which only punishes men and keeps women out of the ambit of punishment. Second, it does not criminalise marital rape if the woman is above the age of eighteen years.

The aggrieved woman may also seek relief under section 498A of IPC on grounds of cruelty. The offence is non- bailable, non-compoundable and cognizable. It was held in M. Srinivasulu v. State of AP[4] that any act which causes grave injury to her is covered within the ambit of cruelty.

Victims of marital rape can seek remedy under the Protection of Women from Domestic Violence Act, 2005 since the act of marital rape is covered under the ambit of sexual abuse. However, it only protects women and provides civil remedies.

Section 122 of the Indian Evidence Act, 1872 allows communication during marriage to be disclosed in the court only if one partner is being prosecuted for an offence against the other. In such a case, due to the non-criminal nature of marital rape, such evidence would be inadmissible. It can be presented before the court on grounds of cruelty, assault or harassment. This provision was discussed in S.J. Choudhary v. The State[5] and the rationale behind the same was to protect the confidentiality of information and dependence of happiness of married life on the same.

NEED FOR REFORMS:

Ray of hope was seen in the decision by Delhi High Court in RTI Foundation v. UOI[6] where it was held that both husband and wife have the right to say ‘no’ to sex in a relationship. It was also held that ‘marriage does not mean the consent for sex’. The PIL was filed by RTI Foundation in the year 2015 appealing to criminalize marital rape. This was opposed by Men’s Welfare Trust where they contended that women already have a plethora of reliefs under the law and criminalizing marital rape would become another tool of harassment in the hands of their wives. However, contention from the parties is incomplete. Rape is a grave offence, crime against humanity[7] and for the same, both of them can be held responsible.

The Exception II to Section 375 is violative of Article 14 and Article 21, which is the most cherished fundamental right. Article 14 provides that equal protection of laws and equality before law. Any deviation must fall under the arena of reasonable classification. Thus, excluding men and women from seeking protection as marital rape victims violates their fundamental right.

Article 21 guarantees right to life with personal liberty and dignity. However, non-criminalizing an offence of rape robs them of their personal dignity and right to privacy. It was held in Maneka Gandhi v. UOI[8] that life without liberty and dignity is meaningless. In Suchita Srivastava v. Chandigarh Administration[9], the SC “equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21.”[10]

CONCLUSION:

Marital rape is the worst form of sexual violence prevailing in families. India is one of the thirty six countries which does not criminalize marital rape. “As per National Family Health Survey, one in three women have been subjugated to physical, sexual and emotional violence at the hands of their spouse.”[11] “Five out of every 100 women in India reported that their husband had physically forced them to have sexual intercourse with him even when they didn’t want it.” [12] Use of force for sexual intercourse is not only limited to physical force. The Central government argues that criminalizing it may destabilize the institution of marriage. However, if such a pious institution is based on such flawed ideas of considering woman as the chattel of her husband, it should be disintegrated. Justice Verma Committee suggested criminalization of the same but now, it is need of the hour that we recognize gender neutral laws in terms of rape and protect the most sacrosanct rights of the citizens of the country. There must be an ideological shift that neither women are the chattel of the husbands nor marriage is a yes to sex anytime. Moreover, women too can be perpetrators and men should also raise their voice against such atrocities.


[1]Retrieved from < https://www.forbes.com/sites/kathycaprino/2018/01/25/renowned-therapist-explains-the-crushing-effects-of-patriarchy-on-men-and-women-today/#71f77ce02161> Last accessed on 28th March 2020 at 2:22 pm.

[2] Retrieved from < https://www.ebc-india.com/lawyer/articles/645.htm> Last accessed on 28th March 2020 at 3:20 pm.

[3] (2017) 10 SCC 800.

[4] Appeal (crl.) 11 of 2002.
[5] 1984 (2) Crimes 487.

[6] WRIT PETITION (CIVIL) NO. 284/2015.

[7] Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490.

[8] 1978 SCR (2) 621.

[9] (2008) 14 SCR 989 (India).
[10] Sarthak Makkar, “Marital Rape : A Non-criminalized crime in India”, Harvard Human Rights Journal, 2019.

[11]Retrieved from < https://www.thebetterindia.com/134673/survey-nfhs-marital-rape-india/> Last accessed on 28th March 2020 at 6:15 pm.

[12] Retrieved from < huffingtonpost.in/kumar-rajesh/latest-data-on-sexual-violence-in-marriages-shows-why-india-should-progress-towards-criminalising-marital-rape_a_23367102/ > Last accessed on 28th March 2020 at 10:02 pm.

Author Details: Preetkiran Kaur

The views of the author are personal only. (if any)

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