Importance and need for Marital Rape Law in India

Published by Tanvi Srivastava on

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Table of Contents
  1. Introduction
  2. Indian Penal Code and the Indian Constitution
  3. Indian Government’s Reaction to Criminalization of Marital Rape
  4. The Indian Judiciary and Marital Rape
  5. Reasons for Non-Criminalization of Marital Rape
  6. Conclusion

Introduction

In India, every 16 minutes a woman gets raped.[1] But, it does not mention whether it is talking about an unmarried or married woman. So why does the law differentiate between rape and marital rape? According to National Family Health Survey (NFHS) 2015-16, the average Indian woman is 17 times more likely to face sexual violence from her husband than from others.[2] Then why is the same recourse of protection and justice not available to an Indian married woman?

Indian Penal Code and the Indian Constitution

The rape is defined as follows in Section 375 of the Indian Penal Code: ‘An act of sexual intercourse with a woman without her consent, against her will, or under any kind of misconception or fear, then the man is guilty of rape.’[3] However, exception 2 present nullifies the crime of marital rape. It states that sexual intercourse by a man with his wife is not rape unless the wife is under the age of fifteen. The age limit of 15 was changed to the age limit of 18 by the Supreme Court judgement in the year 2017. Exception 2 gives husbands the full right to rape their wives legally.

Article 14 of the Indian Constitution guarantees equal protection of rights to all its citizens. In-State of West Bengal v. Anwar Ali Sarkar [4], the Supreme Court ruled that under Article 14, any classification should be done on intelligible differentia and such differentia must have rational nexus with the object sought to be achieved. The exception clause does not protect married women and discriminates against them, not based on intelligible differentia but their marital status.

Article 21 of the Indian Constitution states that ‘No person shall be deprived of his life or personal liberty except according to a procedure established by law.’[5] The exception clause violates the very spirit of article 21 as clear as a day. In fact, in Suchita Srivastava v. Chandigarh Administration[6], the Supreme Court said that ‘the right to make choices about sexual activity is very much within the scope of rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.’ The exception clause 2 strips a wife of autonomy over her own body and reduces the concept of consent to nothing. By not criminalizing marital rape, the law has technically given the husband the “possession” of the body of his wife and can sexually abuse her with no fear of consequences. The exception clause 2 strips Indian married women of their equality, dignity and privacy.

The Indian Penal Code was developed by the British and the same has continued to this day. Even though, the United Kingdom itself in the year 1991 criminalized marital rape in the landmark judgment case R v R[7]. The husband claimed that marriage gave him irrevocable consent and that he could not be convicted on the grounds of rape. The court refused his contention and said to establish the crime of rape, the relationship between the two-party stands immaterial. Lord Keith communicated on behalf of the Court that modern marriage is a “partnership of equals and the wife is no longer considered the subservient chattel of the husband”. In India, marriage is considered as the license of irrevocable consent for sexual activities and the barbarism continues till day.

Indian Government’s Reaction to Criminalization of Marital Rape

India is one of the 36 countries in the world where marital rape has not been criminalized. In 2013, the United Nations Convention on Elimination of Discrimination against Women (CEDAW) recommended that the Indian government should criminalize marital rape.[8] Several appeals have been made to the government to criminalize the offence of marital rape, unfortunately, all of them have failed.

After the horrific incident of Nirbhaya gang rape and murder in the year 2012, the parliament set up the J S Verma committee. The committee built a report which had formed the basis for the Criminal Law (Amendment) Act of 2013. The government amended the IPC to add clauses that increased the age of consent, included acid attacks but not the criminalization of marital rape. The report mentioned that marriage is not an irrevocable consent to sexual intercourse. As a result, the nature of the relationship between the victim and accused should be immaterial while charging the accused with the crime.

In the year 2018, a private bill ‘Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018’ was introduced in Lok Sabha which criminalized marital rape, along with other things. The bill lapsed as it could not garner enough support.

The Indian Judiciary and Marital Rape

While the government tries to deny the crime of marital rape time and again, the Indian high courts have also given different reactions to different cases.

In August 2021, the Kerala High Court allowed marital rape as a ground for divorce. The court noted ‘Treating wife’s body as something owing to husband and committing a sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompasses bodily integrity, and any disrespect or violation of bodily integrity is a violation of individual autonomy.’

A few days after this judgement, the Chhattisgarh high court acquitted marital rape by ruling that sexual intercourse between a legally wedded man and woman is not rape even if it is by force or against the wishes of the wife. The conflicting judgments between the Kerala and Chhattisgarh high courts are not something new.

Similarly in the year 2018, the Gujarat high court ruled that non-consensual intercourse by a husband was not rape. That very same year, the Delhi high court noted that both men and women have a right to say “no” and that marriage does not mean consent. Different points of view made by the Indian high courts present a legal paradox.

One would expect the Supreme Court to clear this confusion and present a socially-progressive outlook on this issue, but unfortunately, the Supreme Court too failed to separate itself from the years of patriarchy and misogyny. In the year 2015, the apex court dismissed a petition filed by a woman to criminalize marital rape stating that law shall not change for one person. In the Arnesh Kumar v State of Bihar[9], the apex court held that criminalising marital rape will be the “collapse of the social and family systems”.

Reasons for Non-Criminalization of Marital Rape

The aforementioned has proved that activate both the Indian Government and the Indian Judiciary have supported the non-criminalization of marital rape. The main reason given by both of them is that the criminalisation of marital rape is against the Indian culture and that it will lead to an ultimate breakdown of marriage and family. In 2019, Former CJI Dipak Misra said that marital rape should not be criminalised “because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values”. It is argued by them that unlike in other countries, where marriage is a contract, in India it is a solemn concept. Interfering with it will make us lose the Indian culture and traditions. The question here arising is that at what cost the government and judiciary are protecting marriage. 2/3rd of the women in marriage face sexual abuse and forceful sexual intercourse which would be termed as rape if they were not married. Inaction to criminalise marital rape sends a message that it is okay for husbands to violate their wives sexual consent any time they want.

Another reason is that women may misuse the law if marital rape is criminalized. Females would falsely accuse their husbands as whether the sexual intercourse was forced or not will be based on the wife’s discretion. However, it is important to note that a judge will preside over a case before giving any judgement. It will be the duty of the judiciary to weed out the false cases. Just because of the possibility that few women may misuse the law we cannot let the women who are actually suffering continue their suffering by not providing them with a course of law and protection.

Conclusion

A woman marries and enters into a family leaving behind her own safe space that she has been in since the day she was born. If this institution of marriage cannot give her the dignity, safety and consent that she deserves, the state has to intervene in the matter immediately. The state should enter into the realm of home and bring the most atrocious crime under the purview of state laws. The license given to the husband for forced sex is a total negation of a woman’s self-worth. Women are not a piece of property but a soul with their rights. And the government needs to make sure that these rights are in place. Therefore, there is a much-needed reform for criminalizing marital rape in India to protect women’s integrity and dignity in India.

References:

[1] T. (n.d.). NCRB’s report reveals a rape happens every 16 minutes in India; UP tops list of crimes against women. The Economic Times.

[2] Bhattacharya, A. (2021, September 1). Supreme Court recognises sexual right of all women. So how is marital rape still legal? ThePrint.

[3] Indian Penal Code § 375, No. 45 of 1860, India Code.

[4] The State Of West Bengal vs Anwar All Sarkarhabib, 1952 AIR 75, 1952 SCR 284

[5] India Const. art. 21

[6] Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1.

[7] (1992) 94 Cr App R 216

[8] Anirudh Pratap Singh, The impunity of marital rape, Dec, 20, 2020, The Indian Express, https://indianexpress.com/article/opinion/columns/the-impunity-of-marital-rape/

[9] Arnesh Kumar V State Of Bihar (2014) 8 Scc 273

Other Sources:

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