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Equal Justice: Marital Rape Should Be a Criminal Offence

This research paper delves into the contentious subject of the criminalization of marital rape with considering argument for or against criminalizing marital rape based on the landmark judgment. Marital rape stands as an unsettled issue within the realm of law, with its classification as a crime or otherwise remaining ambiguous. This paper examines various legal and societal impediments hindering the removal of the exemption of marital rape from the Indian Penal Code (IPC). The contention put forth is that the provision stipulated in Section 375(2) of the IPC constitutes a violation of women's fundamental rights and is, therefore, constitutionally impermissible.

Marital rape is legally defined as the commission of sexual acts without the consent or against the will of a wife by her husband. Marital rape has been a controversial crime for a long time, with debate over whether it should be considered a crime or not. Historically, society has adhered to the belief that a woman's role within a marital relationship encompasses the responsibility to care for her husband, bear offspring, manage the household, and fulfill her husband's emotional and sexual needs.

While men were tasked with the duty of protection, this societal construct sometimes evolved into domination and excessive control. In the context of India, a woman's identity has been traditionally subsumed within that of her husband. At the time of the IPC's drafting in 1860, women were not recognized as having an independent legal identity. Consequently, women lacked the capacity to provide consent in matters related to their own well-being, including choosing their spouse, sexual relationships in married life, thus rendering marital rape non-criminal under the IPC.

This paper posits that such a legal framework infringes upon the rights of married women, particularly with regard to their ability to provide consent in sexual matters. Is it equality that an unmarried woman has the right to decide whether she wants to engage in a sexual relationship or not, however if she marries, we take away her right to decide for her sexual life, and giving that right under her husband's control. India, notably, retains an exemption for forced sexual acts within a marriage, a circumstance that remains exempt from being categorized as rape, in contrast to many other nations where marital rape is a criminal offense.

According to the 5th National Family Health Survey 2019-2021:

  • Six percent of women aged 18-49, who were subjects of a nationwide survey conducted by the Ministry of Health and Family Welfare, reported experiencing sexual violence during their lifetime.
  • Among married women aged 18-49 who had experienced sexual violence, 83 percent reported their current husband as the perpetrator, while 13 percent reported their former husband. These reports closely align with the IPC's definition of rape.
According to the National Crime Records Bureau (NCRB) report of 2019, crimes against women exhibited a 7.3 percent increase from previous records. It is noteworthy that while marital rape is considered a crime in most countries, India is among the select few where it remains decriminalized. In 2013, the United Nations Committee on the Elimination of Discrimination Against Women recommended the criminalization of marital rape to the Indian government.

Status of Marital Rape in India:

The legal definition of rape, as articulated in Section 375 of the IPC, encompasses all forms of sexual assault entailing non-consensual intercourse with women. Notwithstanding this broad definition, Exception 2 of Section 375 in the IPC stipulates that "sexual intercourse or sexual acts between a man and his wife, provided the wife is not below fifteen years of age, shall not constitute rape." Under Indian law, it is assumed that a wife implicitly provides continuous consent to sexual intercourse with her husband upon entering into a marital relationship.

The notion of marital rape represents a striking example of implied consent within the context of matrimony, wherein the assumption is that both parties have voluntarily granted consent to sexual relations. This understanding, however, is rooted in a time when a woman's legal identity was inexorably linked to that of her husband. Consequently, the concept of marital rape has not been legally recognized as a crime, given the absence of an independent legal identity for women.

Violation of Article 14 and Article 21 of the Indian Constitution:

  • Article 14 - Equality before the law: The criminalization of marital rape presents a challenge to the right to equality enshrined in Article 14 of the Indian Constitution. Article 14 guarantees the fundamental right to equality before the law and equal protection of the laws within the territory of India. While Section 375 of the IPC unequivocally defines sexual intercourse without a woman's consent as rape, Exception 2 of section 375 of IPC creates a distinction by excluding marital sexual intercourse from the ambit of rape. This distinction raises concerns about unequal treatment between married and unmarried women, thereby infringing upon the principle of equality.
  • Article 21 - Right to live with human dignity, right to privacy, and the right to choose sexual relationships: Article 21 of the Indian Constitution encompasses a range of rights, including the right to health, dignity, sexual privacy, and human dignity. In the case of State of Karnataka versus Krishnappa, the Supreme Court recognized that sexual violence represents an unlawful intrusion upon the right to privacy and the sanctity of females. Rape, in itself, is considered a profound affront to the victim's self-esteem and dignity, resulting in enduring trauma. In the context of married women, such experiences are endured daily, subjecting victims to fear, trauma, and a diminished sense of self.
State of Maharashtra versus Madhukar Narayan reinforced the principle that every woman, regardless of marital status, is entitled to sexual privacy and the right to provide consent within the context of her married life.

Arguments Against Criminalizing Marital Rape:

The primary argument against criminalizing marital rape centers on the potential erosion of the sanctity of marriage and family life. This perspective posits that the recognition of marital rape as a crime could undermine the institution of marriage, cultural norms, and societal boundaries.
  • The case of Harvinder Kaur versus Harmender Singh in 1984 highlighted the viewpoint that the Constitution should refrain from intruding into domestic matters, as such interference could jeopardize the institution of marriage. It was opined that neither Article 21 nor Article 14 had relevance within the private sphere of the home and married life.
  • In the case of State versus Vikash in 2014, a special fast-track court in Delhi ruled that sexual intercourse between legally wedded spouses, even if forced, did not constitute rape.
  • In 2015, the Supreme Court declined to entertain a woman's plea to declare marital rape a criminal offense, asserting that it was not feasible to change the law for one individual.
  • In the same year, the RTI Foundation filed a Public Interest Litigation in the Delhi High Court challenging the exemption of marital rape in Section 375 of the IPC, contending that it contravened Article 14 and Article 21 of the Indian Constitution.
Opposition to criminalizing marital rape often stems from deeply ingrained societal attitudes and traditional beliefs regarding the inviolability of marriage. Many argue that the state should refrain from intervening in what is perceived as the private sphere of marital relations, fearing that such interference could destabilize the institution of marriage itself. Legal precedents, such as the case of Harvinder Kaur versus Harmender Singh and State versus Vikash, reflect a reluctance to redefine the boundaries of consent within marriage, with courts often deferring to cultural norms and marital autonomy over legal recognition of spousal rape. These arguments underscore the complex interplay between legal frameworks, cultural values, and individual rights in addressing issues of intimate partner violence within the confines of marriage.

Arguments in Favor of Criminalizing Marital Rape:

It is a commonly held belief that criminalizing marital rape would potentially undermine the institution of marriage. However, from my perspective, the sanctity of marriage is undermined when a husband engages in sexual intercourse with his wife without her consent. This violation not only breaches the trust and intimacy within the marital bond but also challenges the fundamental principles of autonomy and respect in any relationship.

To clarify, a woman's consent within the confines of matrimony is typically associated with her agreement to enter into the marriage contract, not an unequivocal consent for sexual intercourse. Therefore, the presence of consent for marriage does not confer an unrestricted entitlement to fulfill one's sexual desires without the ongoing, informed consent of one's spouse. Consent, they argue, is an integral aspect of marital relationships.
  • In the case of Bodhisttwa Gautam versus Subhra Chakraborty in 1995, the Supreme Court acknowledged that rape violated Article 21 of the Constitution, thereby infringing upon a spouse's entitlement to live with human dignity.
  • The case of Nimesh Bharat Bhai Desai versus State of Gujarat in 2018 highlighted that a wife should not be viewed as mere property, and a husband is obligated to engage in sexual activity with her in a manner that respects her dignity and secures her free and full consent. Legal protections should safeguard the bodily autonomy of all women, irrespective of their marital status.
  • In 2013, the Justice Verma Committee recommended that the exception for marital rape should be reevaluated, and consent should be the primary determinant in assessing the legality of sexual activity within a marital relationship.
  • In 2019, Shashi Tharoor, a Member of Parliament, during the introduction of the Women's Sexual, Reproductive, and Menstrual Rights Bill 2018, emphasized that marital rape was fundamentally about violence and a lack of consent, not merely a matter of marital status.
  • On December 14, 2021, the Gujarat High Court issued a notice in a plea challenging the constitutionality of Exception 2 to Section 375 of the IPC, asserting that it violated a wife's fundamental right to sexual autonomy.
  • "The Bench, headed by Justice Dhananjaya Y. Chandrachud, ruled on the MTP Act, stating that a forceful pregnancy of a married woman can be treated as 'marital rape' for the purposes of abortion.
  • The Gujarat High Court on 19-Jan-2024 stated, "Rape is rape even when committed by her husband" while rejecting the bail of the accused who sought exemption under Section 375(2) of the IPC. The judges of the High Court referred to the 50 American states where marital rape is criminalized.

Here's the corrected version:
After all these years of fighting to criminalize marital rape, where there are many who oppose its criminalization, now, most high courts are ruling in favor of criminalizing it. Additionally, the Supreme Court, in many cases, has stated that marital rape should be criminalized. Now, the Supreme Court has included forcible pregnancy in marital rape, making it illegal, and has allowed for early hearings for exemption 2 of Section 375 IPC. Therefore, it is now the correct time to remove exception 2 of Section 375 of IPC and to criminalize marital rape."

In conclusion, marital rape constitutes a profound threat akin to rape itself. The words of Justice Krishna Aiyar in the case of Rafiq versus State of UP, that "a murderer kills the body, but a rapist kills a soul," resonate deeply. The phenomenon of marital rape entails a woman's violation within the confines of her own home by her spouse, resulting in profound physical and psychological harm. A woman who is raped daily in her own home by her spouse is unable to confide in anyone about it.

This not only impacts her physical and mental well-being but also affects the children raised in such an environment. Such circumstances leave victims isolated and without recourse, and the legal system's response has thus far been inadequate. For India, a nation where goddesses are revered, and daughters-in-law are described as "GHAR KI Lakshmi," silence on this critical issue is untenable. Failure to act would represent a grave miscarriage of justice and a departure from the principles of equality and the right to life.

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