Criminalization of Marital Rape
Marital rape is the term used to describe sexual acts committed without the
wife's consent or against her will by the woman's husband . These acts may be
done by physcial force or threats. Rape is a sexual act done without the
victim's consent. So in these cases, consent is considered as an essential
element to determine whether a sexual act is a rape or not. In the context of
criminal justice system, there are some instances where the consent is not
presumed to exist such as in the case of minors whose consent is irrelevant to
sexual acts, and there are other instances where the consent is presumed to
exist such as in the case of married couples.
The Indian law does not punish a husband for having forcible sexual intercourse with his wife without her consent.
Poland is one of the first countries to recognise marital rape as a criminal offence in 1932. The Soviet Union, now Russia, removed "marital exemption" from its rape laws in 1922.
Over the years several first-world countries too made it an offence punishable under law, including the UK, the US, Canada, Australia, Sweden, Norway, Denmark, New Zealand, France, Germany, Ireland, Israel, Belgium, Luxembourg, the Netherlands and many more.
Among 195 countries in the world only 36 countries have not recognised marital rape as a criminal offence ,and it is unfortunate that India is among one of them. Starting from India, its neighbours Pakistan, China, Bangladesh, Myanmar, Sri Lanka and Afghanistan is also in the list.
Provisions
Before jumping into the topic of criminalization of marital rape , we should first know the definition of the word 'rape ' . According to Wikipedia, rape is a type of sexual assault involving penetration , typically vaginal, oral or anal performed without the victim's consent. This can occur through force , coercion or when the victim is incapacitated or legally incapable of giving consent, such as being underage or intoxicated.
According to section 63 of Bharathiya Nyaya Sanhita, (earlier section 375 of IPC)
A man is said to commit "rape" if he:
Now let's look into the definition of marital rape, Marital rape or spousal rape is the act of sexual intercourse with one's spouse without the spouse's consent. The lack of consent is the essential element and doesn't always involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse.
Background
As per the UN Population Fund, more than two - third of married woman in India ,aged between 15-50 are forced to have sex with their husbands against her will , regardless of their socio - economic positions and according to International men and gender equality survey (2011) one in five men force their wife to have sex with them. Why this happens ? What made married men believe that consent to have sex is irrelevant when the victim is their wife ?
The answer goes way back , the reason why men didn't really consider about their wife's consent is because there was a general belief revolving around the society that before marriage a girl is the property of her father and after marriage the wife is the property of her husband. Hence women was considered as men's own property it was not considered as rape when there is no consent because of the belief that people can do whatever they want with their property.
Also there are certain stereotypes about women , one of them is that women enjoy forced sex and women say "no" when they really mean " yes" . These types of stereotypes made men believe that when women express their will against sex , it is only because they want more. Moreover women believe that they are bad wives if they do not satisfy their husband's needs.
Another reason is economic dependence of the wife over her husband and in-laws which make the married women unable to protect themselves from frequent practice of marital rape and are bound to bear the violence.
Another prominent reason why married men use force over their wife is the absence of legal provisions recognising marital rape as an offence. It is because there is a presumption in the legal context that , criminal law should not interfere with the private sphere of marital relationship between husband and wife .Marriage is considered to be a sacred institution that forms the bedrock of our society. It is viewed as deeply personal and the State is hesitant to disturb this delicate space. This is to maintain the privacy of citizens and the thought that intrusion of the State in this sphere would disrupt this privacy. Thus, the State does not compel any two individuals to marry or divorce.
Is Marital Rape Violation Of Fundamental Rights
As per Article 14 of the Constitution of India "the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. The Indian Penal Code operates prejudicially against those ladies who were raped by their husbands, notwithstanding the Constitution which ensures equal protection to each person.
In The Case Of The Harvinder Kaur Vs. Harmander Singh 3
The Delhi High Court held that the Constitution of India could not intervene in household matters as it would destroy the institution of marriage. The court also stated, "in the privacy of the home and married life neither Article 21 nor Article 14 of the Indian Constitution have any role to play".
A married woman was not contemplated as a separate or an independent legal body while documentation of the IPC in the 1860s. Instead, she was regarded as the chattel of her husband. Exception 2 to section 375, IPC, which exempts sexual actions committed by husbands against their wives from being regarded as an act of "rape", is largely persuaded by and acquired from the already existing doctrine of blending the woman's identity with that of her husband.
The second exception to section 375 ultra vires the right to equality incorporated in 'Article 14' of the Indian Constitution as it discriminates against those women who are married by disconfirming them tantamount security from rape and sexual abuses. This exception produces two classes of women based on their marital status and exempts actions committed by men against their wives. Correspondingly, due to the marital status of women, Exception 2 makes the exploitation of married women viable but in the case of unmarried women similar acts i.e., rape and sexual harassment have been criminalized.
Exception 2 to section 375, IPC, also violates Article 21 of the Constitution of India (i.e.) "no person shall be denied of his life and personal liberty except according to the procedure established by law." This clause has been interpreted by the Supreme Court of India, with time and again in several of its judgments to stretch the meaning of this clause rather than confine it within the literal meanings of life and freedom.
It asserted that the rights guaranteed under Article 21 include all the aspects which are essential for living a good life for example right to privacy, health, dignity, safe environment, safe living conditions and many more.
Present Scenario
In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) advised India to abolish legal impunity for marital rape. CEDAW's Article 1 defines "Discrimination Against Women" as any differentiation based on gender that undermines women's ability to exercise their human rights and fundamental freedoms in various spheres, regardless of their marital status. But India's legal provision granting marital immunity conflicts with CEDAW's General Recommendation.
Marital immunity in India also violates the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR). According to Article 26 of the Covenant, member states must ensure equal protection of dignity and status for all citizens regardless of their marital status or other factors. Marital rape creates a distinction between married and unmarried women, thus constituting discrimination.
As a member state, India is prohibited from derogating from any fundamental rights outlined in Article 5. Furthermore, India's legal framework contradicts Article 1 of the Universal Declaration of Human Rights due to the discriminatory nature of exception 2 to section 376.
India's laws also run counter to the Fourth World Conference on Women held in Beijing, which urges countries to enforce CEDAW provisions, including the Optional Protocol, and to amend or remove discriminatory laws
Since 2015, the Delhi High Court has been engaged in deliberations in the case titled RIT Foundation vs The Union of India 6 . In this judgement, two judges of the Delhi High Court , made a controversial verdict , with one judge advocating for the criminalisation of marital rape because it infringed upon a woman's right to consent, while the other opposed it, contending that marriage inherently implied consent. Consequently, the matter was escalated to the Supreme Court.
In 2012, the Justice JS Verma Committee was entrusted with formulating amendments to India's rape laws. While several of its recommendations influenced the passage of the Criminal Law (Amendment) Act in 2013, certain suggestions, including those regarding marital rape, were not acted upon.
The issue of marital rape has been raised in Parliament as well. In response to inquiries during a 2015 parliamentary session, the notion of criminalising marital rape was rejected, citing the perception of marriage as a sacred institution in Indian society.
In September 2022, the Supreme Court issued a landmark ruling in the case titled X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr. 7 affirming women's right to safe abortions irrespective of marital status. The ruling stipulated that, under the Medical Termination of Pregnancy Act, the definition of rape should encompass marital rape.
In the 2017 landmark case Independent Thought v Union of India,8 the Indian Supreme Court increased marital consent from the age of 15 to 18, arguing that excusing the marital rape of minors was contrary to articles 14, 15, and 21 of the Constitution. This progress is still limited because although protection is now granted to all married minor women, rape continues being decriminalised for married women over 18.
Conclusion
Among 195 countries India is one of the 36 countries which have not yet criminalised marital rape and the reasons for that are not justifiable in today's context. The justification that women don't have a separate identity as soon as they get married is beyond time. As they say marriage is a sacred institution, the women , the wives are being violated by someone whom they share their lives , whom they share their home when they are constantly raped by their husband . They suffer from long-lasting physical and psychological injuries which make them more suppressed.
It is debatable how sexual intercourse with a minor who has been married is rape and as soon as they reach 18 the relevancy of consent is fading. It's now time to remove the marital rape exemption clause under section 375 of IPC and according to section 63 of Bharathiya Nyaya Sanhita , as it is unconstitutional because it violates Article 14 and Article 21 of the constitution. Just as there is no consent to be presumed to exist in the case of minors there should not be any presumption of consent in the case of married couples.
References:
The Indian law does not punish a husband for having forcible sexual intercourse with his wife without her consent.
Poland is one of the first countries to recognise marital rape as a criminal offence in 1932. The Soviet Union, now Russia, removed "marital exemption" from its rape laws in 1922.
Over the years several first-world countries too made it an offence punishable under law, including the UK, the US, Canada, Australia, Sweden, Norway, Denmark, New Zealand, France, Germany, Ireland, Israel, Belgium, Luxembourg, the Netherlands and many more.
Among 195 countries in the world only 36 countries have not recognised marital rape as a criminal offence ,and it is unfortunate that India is among one of them. Starting from India, its neighbours Pakistan, China, Bangladesh, Myanmar, Sri Lanka and Afghanistan is also in the list.
Provisions
Before jumping into the topic of criminalization of marital rape , we should first know the definition of the word 'rape ' . According to Wikipedia, rape is a type of sexual assault involving penetration , typically vaginal, oral or anal performed without the victim's consent. This can occur through force , coercion or when the victim is incapacitated or legally incapable of giving consent, such as being underage or intoxicated.
According to section 63 of Bharathiya Nyaya Sanhita, (earlier section 375 of IPC)
A man is said to commit "rape" if he:
- Penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person; or
- 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 do so with him or any other person; or
- Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or makes her do so with him or any other person; or
- Applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
- Against her will.
- Without her consent.
- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- With her consent when, at the time of giving such consent, by reason of mental illness or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
- With or without her consent, when she is under eighteen years of age.
- When she is unable to communicate consent.
- Exception 1: A medical procedure or intervention shall not constitute rape.
- 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.
- Exception 1: A medical procedure or intervention shall not constitute rape.
- 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.
Now let's look into the definition of marital rape, Marital rape or spousal rape is the act of sexual intercourse with one's spouse without the spouse's consent. The lack of consent is the essential element and doesn't always involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse.
Background
As per the UN Population Fund, more than two - third of married woman in India ,aged between 15-50 are forced to have sex with their husbands against her will , regardless of their socio - economic positions and according to International men and gender equality survey (2011) one in five men force their wife to have sex with them. Why this happens ? What made married men believe that consent to have sex is irrelevant when the victim is their wife ?
The answer goes way back , the reason why men didn't really consider about their wife's consent is because there was a general belief revolving around the society that before marriage a girl is the property of her father and after marriage the wife is the property of her husband. Hence women was considered as men's own property it was not considered as rape when there is no consent because of the belief that people can do whatever they want with their property.
Also there are certain stereotypes about women , one of them is that women enjoy forced sex and women say "no" when they really mean " yes" . These types of stereotypes made men believe that when women express their will against sex , it is only because they want more. Moreover women believe that they are bad wives if they do not satisfy their husband's needs.
Another reason is economic dependence of the wife over her husband and in-laws which make the married women unable to protect themselves from frequent practice of marital rape and are bound to bear the violence.
Another prominent reason why married men use force over their wife is the absence of legal provisions recognising marital rape as an offence. It is because there is a presumption in the legal context that , criminal law should not interfere with the private sphere of marital relationship between husband and wife .Marriage is considered to be a sacred institution that forms the bedrock of our society. It is viewed as deeply personal and the State is hesitant to disturb this delicate space. This is to maintain the privacy of citizens and the thought that intrusion of the State in this sphere would disrupt this privacy. Thus, the State does not compel any two individuals to marry or divorce.
Is Marital Rape Violation Of Fundamental Rights
As per Article 14 of the Constitution of India "the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. The Indian Penal Code operates prejudicially against those ladies who were raped by their husbands, notwithstanding the Constitution which ensures equal protection to each person.
In The Case Of The Harvinder Kaur Vs. Harmander Singh 3
The Delhi High Court held that the Constitution of India could not intervene in household matters as it would destroy the institution of marriage. The court also stated, "in the privacy of the home and married life neither Article 21 nor Article 14 of the Indian Constitution have any role to play".
A married woman was not contemplated as a separate or an independent legal body while documentation of the IPC in the 1860s. Instead, she was regarded as the chattel of her husband. Exception 2 to section 375, IPC, which exempts sexual actions committed by husbands against their wives from being regarded as an act of "rape", is largely persuaded by and acquired from the already existing doctrine of blending the woman's identity with that of her husband.
The second exception to section 375 ultra vires the right to equality incorporated in 'Article 14' of the Indian Constitution as it discriminates against those women who are married by disconfirming them tantamount security from rape and sexual abuses. This exception produces two classes of women based on their marital status and exempts actions committed by men against their wives. Correspondingly, due to the marital status of women, Exception 2 makes the exploitation of married women viable but in the case of unmarried women similar acts i.e., rape and sexual harassment have been criminalized.
Exception 2 to section 375, IPC, also violates Article 21 of the Constitution of India (i.e.) "no person shall be denied of his life and personal liberty except according to the procedure established by law." This clause has been interpreted by the Supreme Court of India, with time and again in several of its judgments to stretch the meaning of this clause rather than confine it within the literal meanings of life and freedom.
It asserted that the rights guaranteed under Article 21 include all the aspects which are essential for living a good life for example right to privacy, health, dignity, safe environment, safe living conditions and many more.
- In State of Maharashtra & Anr. vs. Madhukar Narayan Mardikar, 4
The Supreme Court asserted that every woman has the right to privacy and it must not be violated.
- In Shri Bodhisattwa Gautam vs. Ms. Subhra Chakraborty. 5
The Supreme Court held that rape violates Article 21 of the Indian Constitution as it hindered fundamental human rights and breached the victim's right to life and dignity.
Present Scenario
In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) advised India to abolish legal impunity for marital rape. CEDAW's Article 1 defines "Discrimination Against Women" as any differentiation based on gender that undermines women's ability to exercise their human rights and fundamental freedoms in various spheres, regardless of their marital status. But India's legal provision granting marital immunity conflicts with CEDAW's General Recommendation.
Marital immunity in India also violates the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR). According to Article 26 of the Covenant, member states must ensure equal protection of dignity and status for all citizens regardless of their marital status or other factors. Marital rape creates a distinction between married and unmarried women, thus constituting discrimination.
As a member state, India is prohibited from derogating from any fundamental rights outlined in Article 5. Furthermore, India's legal framework contradicts Article 1 of the Universal Declaration of Human Rights due to the discriminatory nature of exception 2 to section 376.
India's laws also run counter to the Fourth World Conference on Women held in Beijing, which urges countries to enforce CEDAW provisions, including the Optional Protocol, and to amend or remove discriminatory laws
Since 2015, the Delhi High Court has been engaged in deliberations in the case titled RIT Foundation vs The Union of India 6 . In this judgement, two judges of the Delhi High Court , made a controversial verdict , with one judge advocating for the criminalisation of marital rape because it infringed upon a woman's right to consent, while the other opposed it, contending that marriage inherently implied consent. Consequently, the matter was escalated to the Supreme Court.
In 2012, the Justice JS Verma Committee was entrusted with formulating amendments to India's rape laws. While several of its recommendations influenced the passage of the Criminal Law (Amendment) Act in 2013, certain suggestions, including those regarding marital rape, were not acted upon.
The issue of marital rape has been raised in Parliament as well. In response to inquiries during a 2015 parliamentary session, the notion of criminalising marital rape was rejected, citing the perception of marriage as a sacred institution in Indian society.
In September 2022, the Supreme Court issued a landmark ruling in the case titled X v. The Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr. 7 affirming women's right to safe abortions irrespective of marital status. The ruling stipulated that, under the Medical Termination of Pregnancy Act, the definition of rape should encompass marital rape.
In the 2017 landmark case Independent Thought v Union of India,8 the Indian Supreme Court increased marital consent from the age of 15 to 18, arguing that excusing the marital rape of minors was contrary to articles 14, 15, and 21 of the Constitution. This progress is still limited because although protection is now granted to all married minor women, rape continues being decriminalised for married women over 18.
Conclusion
Among 195 countries India is one of the 36 countries which have not yet criminalised marital rape and the reasons for that are not justifiable in today's context. The justification that women don't have a separate identity as soon as they get married is beyond time. As they say marriage is a sacred institution, the women , the wives are being violated by someone whom they share their lives , whom they share their home when they are constantly raped by their husband . They suffer from long-lasting physical and psychological injuries which make them more suppressed.
It is debatable how sexual intercourse with a minor who has been married is rape and as soon as they reach 18 the relevancy of consent is fading. It's now time to remove the marital rape exemption clause under section 375 of IPC and according to section 63 of Bharathiya Nyaya Sanhita , as it is unconstitutional because it violates Article 14 and Article 21 of the constitution. Just as there is no consent to be presumed to exist in the case of minors there should not be any presumption of consent in the case of married couples.
References:
- Indian Penal Code, No. 45 of 1860, Acts of Parliament, 1860 (India)
- Bharatiya Nyaya Sanhita, No. 45 of 2023, Acts of Parliament, 2023 (India)
- AIR 1984 Delhi 66
- AIR 1991 SC 207, (1991) 1 SCC 57
- 1996 AIR 922
- (2022) SCC OnLine Del 1404
- Special Leave Petition (Civil) No 12612 of 2022
- (2017) 10 SCC 800
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