Indian Laws And The Menace Of Rape
Home is supposed to be a snug place where we seek comfort, control and rest
after a tiring day. A place where we are supposed to feel secure and sheltered.
But the statistics point otherwise. The National Family Health Survey
(2019-2021) revealed that amongst those surveyed 83 per cent of married women,
aged 18-49, have been raped in wedlock by their companion.
Whereas, 13 per cent have reported the same about their former partners. The
data is similar to that reported in the past NFHS report wherein, out of 4,169
married women, 82 per cent of women had claimed that they had experienced sexual
violence in their wedlock.
Rape is one of the most heinous forms of crime that still lacks international
consensus on its definition. Rape or any sort of outrage upon personal dignity
has become a sordid trend. The grim reality persists that it has not been
attended by the international community with enough sensitivity. Instead of
taking a leap toward prevention, the archaic notion of morality still pervades.
The relics of the Hale Doctrine, the jurisprudence of Mathew Hale on marital
rape, still act as diktats in several countries.
but the husband cannot be guilty of rape committed by himself upon his lawful
wife for, by their(wife) mutual matrimonial consent and contract the wife hath
given up herself in this kind unto her husband, which she cannot retract.
History of the Pleas of the Crown (1736)Though It is relevant to state that the country where Justice Hall had expounded
the doctrine of coverture has criminalised marital rape through Parliamentary
legislation i.e., the Sexual Offences Act of 2003.
In the context of India, the penal statute has a disconcerting exception that
provides for immunity to rape in wedlock i.e., Section 375 Exception II. The
provision has been appreciated by other provisions of personal laws such as
restitution of conjugal rights wherein, by a court's decree, a spouse who has
subtracted from the marital society is coerced to cohabit with the companion In
relation to conjugal rights Sec 9 of the Hindu Marriage Act, 1955 and Sec 22 of
Special Marriage Act, 1954 have been challenged in the apex court Ojaswa
Pathak vs UOI in 2019. However, the matter is sub judice before the apex
court. In India, the provisions based on the doctrine of coverture thrive in the
personal as well as penal statutes.
A dialogue on all forms of rape is critical to avert this abominable act. Making
it pivotal to have an all-encompassing definition of rape, which is missing in
India. The provision of rape in the Indian penal statute is no exception. This
has allowed several times the perpetrators to walk away even after committing
atrocious acts. One such heinous act is marital rape which has been exempted in
the Indian penal statute The judicial intervention would have been instrumental
but instead it kept the status quo and jeopardized the concept of consent in
rape cases. Questioning the chastity of the victim instead.
For instance, the Tukaram vs State of Maharashtra verdict is also
famously known as the Mathura case. The court while setting aside the conviction
considered the ruptured hymen of the survivor as the litmus test. The court
established that the survivor was habituated to sexual intercourse and did not
resist and hence does not fall in the ambit of rape. The court over-relied on
the survivor's past instead of focusing on the fact that she did not consent to
the sexual intercourse.
Post the verdict in 1978, many academicians and members of civil societies came
to the forefront and few wrote an open letter to the then CJI Y.V Chandrachud,
questioning whether passivity could be understood as consent? In the letter the
members challenged the verdict of the apex court, seeking to reopen the case
stating the matter was adjudicated on 'chauvinistic assumption'. And that the
matter must be reappraised by a larger bench.
Several petitions were filed in the apex court seeking to reopen the case but
all were dismissed based on the premise of lack of locus standai. This was the
first time that public opinion was galvanised to bring reform in respect of
violent crimes against women in India. And an amendment was brought to the penal
provision i.e., the Criminal Law (Second Amendment) Act of 1983. Although, it is
pertinent to be noted that the amendments did not completely serve the purpose.
The 172nd Law Commission Report of India, 2000 had recommended broadening of the
definition of Sec 375 wherein the word 'rape' should have been substituted with
the word 'sexual assault'. This in turn would have widened the definition and
would have covered all forms of sexual violence.
Post the Nirbhaya, gang rape, in 2012 Justice. J.S Verma Committee had
tabled a comprehensive draft to amend the criminal law of the country. The
recommendations in the draft included criminalising marital rape. However, under
the Nirbhaya Act, neither marital rape was criminalised nor the word 'rape' was
substituted with 'sexual assault'. Also, an unequivocal consent clause in the
section has been diluted by the Delhi HC's verdict in Mahmood Farooqui's case.
In this particular case, the court interpreted consent wherein the accused
should be able to discern the lack of consent. This exception to consent by the
apex court jeopardizes the very foundation of the concept of consent and shifts
the onus of the proof onto the prosecutrix. This stereotype wherein the chastity
of women and the conduct of women during the sexual assault is scrutinized has
been shunned for the first time by Justice B.K Thomas in Vijay Babu's case.
Wherein, the bench observed the jurisprudence followed in the cases of rape and
scrutinizing women's consent as a flawed patriarchal approach.
The persisting problem of marital rape has been condoned because rape is not
seen through the prism of sexual assault. And had not been perceived as an
assault in domestic relations. However, sexual assault must also be defined
since in conventional interpretation it is confined to be merely an 'indecent
act'. Whereas, for the lucidity of the provision, it is important to include
non-consensual carnal intercourse in the definition of sexual assault. This will
cater to the rights of all genders who are subjected to sexual violence.
Notwithstanding this, the condition of women in several countries remains
precarious. In several countries, the legal system provides safeguards against
prosecution to the perpetrators if they marry the rape survivor. According to a
report by United Nations, 2.6 billion women have no legal safeguards against
sexual violence in domestic relations. In 2019 the United Nations urged
countries to reform domestic penal statutes. Also, according to UNFPA (2021), 43
countries have not criminalised marital rape. According to the same report the
Indian penal statute has sanctions but no provision for penalties.
In the Delhi High Court, two Public Interest Litigation (PIL) have been filed by
the RIT Foundation and All India Women's Foundation. And two petitions were
filed by two individuals. The clubbed petitions have challenged Exception-2
appended to Sec 375, along with Sec 376B (Sexual intercourse by husband upon his
wife during separation) of the penal statute and Sec 198B of the Code of
Criminal Procedure (not taking cognizance in matters related to Sec 376B)
wherein, Justice Rajiv Shakdher has held the exception to be violating the ethos
of the Constitution.
On the other hand, Justice C. Hari Shankar has upheld the exception since sexual
intercourse is expected in a marital bond and cannot be termed rape. The court
touched upon several facets of law, but could not conclude the constitutionality
of the above-mentioned provisions. Since the division bench could not
unanimously reach a consensus, the court simultaneously allowed a certificate of
leave to appeal to the apex court. On 17th May 2022 one individual, Khushboo
Saifi filed an appeal against the Delhi HC's order before the apex court.
However, the definition of rape has not been touched upon.
Although the Delhi High Court delivered a split decision, Justice Shakdher
appreciated the arguments of both parties. The argument forwarded by the
respondents, Hridaya and Men Welfare Trust, to make the heinous law
gender-neutral and not gender-specific has been considered by Justice Shakdher.
Although the latest development in the high courts has taken the situation
head-on on a progressive note.
For instance, Justice A Muhamed Mustaque of the Kerala High Court observed that
the provision of rape in the penal statute is not gender-neutral and the court
must assess the dominance and subordinate role of both the parties. In 2021,
Madras High court in Gopi @ Sarvana vs State, the court upheld that lack of
physical resistance by the prosecutrix does not amount to consensual carnal
Following the same line of jurisprudence, Patana High Court in Justice AM Babar
in Islam Mian vs State of Bihar the impugned judgement held
non-resistance is not equivalent to consent to sexual assault.
The Karnataka High Court in Harishekh Sahoo vs State of Karnataka Justice
M Nagaparasana dealt with the ingredients of rape in a marital rape case and
held the husband for sexually assaulting his wife under rape laws. However, the
apex court has stayed the decision passed by the Hon'ble Court for further
The adherents of exception II (Section 375) claim, that there would be rampant
abuse of the provision if marital sexual violence is criminalised. The rationale
of those who advocate sexual violence in the domestic sphere fails to comprehend
that such rationale does not hold water to allow a provision to existing in the
statute which encroaches upon an individual's dignity. Also, if such rationales
are to be followed then many provisions of penal statute would come under the
umbrella of scrutiny.
For caveat, if the provision is abused the legislature is free to enact upon the
same and the courts are to adjudicate the case. If the adherents of the
exception still desist the progression it infers that they have forsaken faith
in the judiciary.
This approach would encompass sexual violence against the LGBTQ+ community and
make it an equally heinous offence. The demand for the same has been raised
since the Nirbhaya case. As many rights activists have staged a protest to
include gender neutrality in the provision of rape. Justice Verma Committee had
even considered making the provision gender-neutral. The bottleneck to the
particular provision was that it would jeopardize the already dilapidated
condition of an already oppressed community.
In 2019, the Indian Parliament enactment of the Transgender Persons (Protection
of Rights) Act was needed but has its fair share of lacunas. Especially in cases
of sexual harassment of the LGBTQ community. Since the rape laws do not
encompass the LGBTQ community, the 2019 enactment is the only enactment that
protects the community from sexual harassment and assault. But because of the
incomplete definition of rape.
And lacunas in the provision of the 2019 enactment, no liability arises in India
and the cases are taken on a lighter note when the victim belongs to the LGBTQ.
Also, the enactment does not scale a transgender as equal and has a big
discordance when compared to the gravity of the offence in the Indian penal
statute. For instance, the 2019 enactment provides that endangering the life,
safety or well-being of transgender (inclusive of physical abuse or sexual
abuse) shall be punished with imprisonment that may extend to two years. On the
other hand, the Indian penal statute provides for rigorous imprisonment which
shall not be less than ten years.
The Constitution is an organic and living document but it needs to be evolved
and the judiciary plays a pivotal role in the interpretation of the black
letters of the law. In the light of past precedents where the ambit of Art
21(Right to life and liberty) has expounded a plethora of rights. It is expected
by the virtue of the court that it would consider the fact that women are not
subservient to men, that they are unfettered and not domestic slaves. The
ambiguity of law impedes justice and hence it is expected that rape in any or
all forms shall be criminalised in its entirety.
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