December 3, 2020

Criminalizing Marital Rape: Marriage is No Excuse

“Her friends used to tell her it wasn’t rape if the man was your husband. She didn’t say anything, but inside she seethed; she wanted to take a knife to their faces.”

― F. H. Batacan

Marriage is a sacred institution, where love blossoms. It is a collaboration of two souls with a bond of love and respect for each other. In the present time, when the whole world is locked in their homes amidst this Coronavirus crisis, we have seen a huge escalation in the numbers of Domestic violence reports. The issue of domestic abuse has triggered the possibility of marital rapes as well. The deep-rooted patriarchal framework of our society has knowingly or unknowingly created a ‘second-class’ status for women in India. There is a fake sense of superiority among men which drive the motivation for domestic abuse, sexual abuse, or marital rapes. Section 375 of the Indian Penal Code[1], 1872 explicitly allows a man to have sexual intercourse with his adult wife without her consent. The question which arises now- Is Marital Rape keeping alive the sanctity of this devout institution called as Marriage? Does marriage give you a certificate to have sexual intercourse with a woman without her consent?

Introduction

“When it is the person whom you have entrusted your life to, rapes you, that isn’t just physical or sexual assault, it is the betrayal of the very core of the marriage, of the trust, of the love and respect that had once lived there.”

Rape is an unlawful act which involves sexual intercourse with someone without his/her consent. In India, Rape is a punishable offence under Section 375 and 376 of the Indian Penal Code, 1872. Shockingly, it unequivocally excludes marital rape from the ambit of conviction.[2] Marital Rape is having sexual intercourse with one’s spouse without his/her consent or by compelling or danger. India being in a framework of patriarchal society has constantly considered women as an unimportant entity of her significant other or guardian. This grave issue has gone unnoticed and neglected for a long period of time now. The societal beliefs have impacted the legislatures in disregarding this offence as unpunishable and considering it as a wedding right.

Rape is not just savagery toward women, but it is also an infringement of a person’s Right to life and individual freedom. It has been demonstrated that marital rape is even more traumatic than rape and has long-standing outcomes, both physically and mentally. It is a myth that marital rape is less grave and serious than other forms of sexual abuse; there are many serious physical and emotional consequences that may arise as a result of it.[3]

Laws related to marital rape in India

Marital rape is not considered as an offence in India. Enactments regarding Marital rape in our judicial system are either non-existent or esoteric or depend upon the understanding of the Court. Section 375 of IPC holds provisions of a rape. It states that if a man has sexual intercourse with a woman without her consent, or by coercion, or by fraud, or by misrepresentation, or in the state of intoxication, then that act is considered as a rape which is punishable under Section 376 of IPC. An exception clause of Section 375[4], clearly states that Marital rape is not a punishable offence and it is not a crime under the Indian Penal Code, as long as the woman is above 15 years of age. Hence, marital rape will only be considered as a rape when the spouse is of 15 years or less and the nature of punishment is also less severe.

Prior to the amendment in IPC in 2013, If the wife is between 12-15 years of age, the quantum of punishment provided was surprisingly very low. The amendment in 2013[5] has abrogated with this clause but meanwhile, it has also not recognized the concept of marital rape and has chosen to make no initiative for the rights of women.

The Protection of Women from Domestic Violence Act, 2005

In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed by the legislature which considers marital rape as a type of local violence. Under this Act, women assaulted or raped by her husband can go to the court and ask for legal partition on the ground of marital rape. However, the laws and regulations to secure the interests and rights of the casualties of marital rape are lacking and deficient, and the means prescribed and implemented are unacceptable. The Hon’ble Supreme Court and various High Courts are currently flooded with various writ petitions challenging the constitutionality of exception 2 of section 375 Indian penal code 1860 on different grounds, but there seem bleak chances of drastic change in the provisions related to Marital Rape.[6]

Why Marital Rape should be criminalized?

Violation of Article 14

Article 14 of the Indian Constitution guarantees equality among all its citizens and equal protection of law within the territory of India. It ensures that all the rights and freedom laid down by the constitution should be upheld without any discrimination. The Indian Criminal Code visibly discriminate the female victims who are victims of marital rapes. Exception 2 of Section 375 also discriminates between married and unmarried women is also violative of Article 14 as the basis of classification has no rationale to the underlying purpose of the statute.

In the case of Budhan Choudary vs State of Bihar[7] and State of West Bengal vs Anwar Ali Sarkar[8], the Supreme Court held that any classification under Article 14 of the Indian constitution is subject to a reasonableness test that can be passed if the classification has some rational nexus to the objective of the act. But exception 2 completely frustrates the purpose of Section 375 to protect women and punish those who engage in the inhumane activity of rape. The exemption of husbands from the punishment is entirely contradictory to that objective laid down by this Section. Moreover, it is far more difficult for a married woman to cope up with the abusive conditions in the home, burdened with social obligations and financial dependence.[9]

Violation of Article 21

In recent years, Courts have begun to acknowledge a right to abstain from sexual intercourse and to be free from unwanted sexual activity as enshrined under Right to life and personal liberty. Right to live with human dignity also comes under the ambit of Article 21.

In State of Karnataka vs Krishnappa[10] the Supreme Court held that non–consensual sexual intercourse amounts to physical and sexual violence. Similarly, Hon’ble Supreme Court of India in the case of Independent Thought Vs. Union of India and Anr[11] has criminalized sexual intercourse with the minor wife aged between 15 to 18 years but has not made any declaration regarding marital rape of a woman who is a major.[12]

Conclusion

The issue of Marital Rape has been neglected for a long time now. It is not very difficult to understand that the amount of pain and humility a woman goes through when she is forced to have sexual intercourse with a man be it her husband or any stranger. This doesn’t change the fact that her dignity and bodily integrity has been compromised and violated. In fact, a married woman has to live with her perpetrator and cope up with the abusive and hostile conditions of the home. For her, there is no escape as she is financially dependent on him. She has to fight and survive every day with the societal obligations burdened over her. This is high time that we criminalize the act of Marital Rape and provide a woman with the right to live with dignity without marriage being the barrier. With the increasing cases of domestic abuse in the lockdown, there emerges a high requirement of taking this issue seriously. More fundamental steps are needed in India, so that both lawful and social change happens, which would end up criminalizing marital rape and changing the attitude about women in marriage.

[1] S. 375, The Indian Penal Code, 1860.

[2] Why Marital Rape should be a crime, The Hindu, (Mar 15 2016).

[3] Raquel Kennedy Berge & Elizabeth Barnhill, Marital Rape: New Research and Directions, National Resource Centre on Domestic Violence (NRCDV), 101, 2006.

[4] S. 375 exception 2, The Indian Penal Code, 1860.

[5] The Criminal Law (Amendment) Act no. 13 of 2013.

[6] Criminalising marital rape may destabilise institution of marriage, Centre tells HC, The Hindu, (August 29, 2017).

[7] Budhan v. State of Bihar, AIR (1955) SC 191(India).

[8] State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75(India).

[9] Marital rape: the statistics show how real it is, The Hindu, (June 30, 2016).

[10] The State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India).

[11] Independent Thought Vs. Union of India and Anr [19],2 017, 10 SCC, 800.

[12] Kalpana Sharma, Marital rape: the statistics show how real it is, Times of India, (November 23, 2017).

Author Details: Shourya Shubam (Chanayka National Law University)

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

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