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According to the UN Women’s 2011 report, out of 179 countries for which data was available, 52 had amended their legislation to explicitly make marital rape a criminal offense. However, India is one of the countries where marital rape is yet to be even recognized.
Recently, the Kerala High Court held that acts of sexual perversions of a husband against his wife amounted to (mental) cruelty and was, therefore, a good ground to claim divorce (since marital rape is not a punishable offence). The Court also said that in modern social jurisprudence, spouses are treated as equal partners and a husband cannot claim any superior right over his wife either with respect to her body or with reference to her individual status.
In another case, the High Court of Chhattisgarh heard a criminal revision petition on the charges framed against the husband based on the allegations of his wife. The High Court upheld charges under Sections 498A (cruelty towards wife by husband or relatives) and Section 377(unnatural sex) but discharged the husband under Exception 2 to Section 375.
These cases again put a spotlight on debates around marital rape in India.
Section 375 of the Indian Penal Code (IPC) and Marital rape
Section 375: This section provides the definition of rape. Under this, a man is said to commit “rape” who had sexual intercourse with a woman under certain circumstances. This section also specifies the circumstances like against her will, without her consent, etc.
Exception 2 to Section 375: This section provides that sexual intercourse by a man with his own wife (provided that wife is over the age of 18) would not amount to the offence of rape. This is based on the premise that all sex within marriage is consensual.
Status of Marital rape in India
In a survey conducted by International Centre for Research on Women (2011) nearly 20% of Indian men have, reportedly, at least once carried out sexual violence against a female partner.
Another study conducted by the Joint Women Programme, an NGO, found that one out of seven married women had been raped by their husbands at least once. They frequently do not report these rapes because the law does not support them.
In another study by National Health and Family Survey (NFHS-4) for the year 2015-16, 5.6% of women have been reported as victims under the category of “physically forced her to have sexual intercourse with husbands even when she did not want to”.
What are the court Judgements on Marital rape?
Nimeshbhai Bharatbhai Desai vs State of Gujarat (2017) case: In this case, the Gujarat High Court elaborately dealt with the issue of marital rape. The court stated that “making wife rape illegal or an offense will remove the destructive attitudes that promote the marital rape”;
However, due to the non-recognition of marital rape as a crime, the court held that the husband is liable only for outraging her modesty and unnatural sex.
Independent Thought v. Union of India (2017) case: In this case, the SC has criminalised sexual intercourse with a minor wife aged between 15 and 18 years. But, the SC refused to delve into the question of marital rape of adult women while examining an exception to Section 375 (rape) of the Indian Penal Code (IPC) which allows a man to force sex on his wife.
Note: The Court restricted marital rape cases to minors to bring parity between IPC and POCSO 2012.
High Courts(HC) have given various views. One HC backed marital rape as a valid ground for divorce, while others granted anticipatory bail to a man who was accused of marital rape.
But the High Courts have highlighted the lacunae in IPC which provide that any sex between a man and his wife, forcible or not, does not constitute rape.
What are the challenges in criminalising marital rape?
Eyewitness: There are issues as these crimes are committed in a space where there are no eyewitnesses. But this is the same for other crimes of Rape and POCSO.
Threat to life: It will further increase the threat to a woman’s life by her husband and her in-laws. Any attempt to go against them may lead to further atrocities and an attempt on her life.
Institution of the family: Mostly husbands get protection in the name of marriage as it is considered as a sacrosanct institution.
Note: In 2018, the central government had filed an affidavit in Delhi High Court, arguing that marital rape should not be criminalized, on the ground that it may “destabilize the institution of marriage”.
Society and mindset: Right from police to judges, society is structured in a manner to be insensitive against marital rape crimes.
False cases: Dissatisfied, angry, vengeful wives might charge their innocent husbands with the offense of marital rape. Further, it will be difficult for husbands to prove their innocence.
Increase burden on judiciary: Due to the near impossibility of proving marital rape, and false cases, its criminalisation would only serve as an increased burden to the already overburdened legal system.
How the issue of Marital rape can be addressed?
Implementing the recommendations of the Justice Verma Committee: The committee was constituted in 2012 with an objective to strengthen the anti-rape laws in the country. The committee observed that Marital rape is a criminal offence in South Africa, Australia, and Canada, among other countries. The committee strongly recommended that the exception for marital rape be removed.
The Committee also highlighted the recommendations made by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee in respect of India in 2007. The CEDAW asked for “widening the definition of rape to reflect the realities of sexual abuse experienced by women, and to remove the exception to marital rape from the definition of rape”.
So, it is high time that the Parliament has to legislate a law to bring the necessary changes.
Judicial interventions: The Courts around the world have played a great role in shaping Jurisprudence. Like the argument for LGBT which emerged in the EU and US was taken up by the Indian courts too.
In matters of rape, the courts around the world, like the European Commission of Human Rights (ECHR) has held that “a rapist remains a rapist, regardless of his relationship with the victim”.
Further, while decriminalising adultery, the Supreme Court in Joseph Shine vs. Union of India (2018) said that legislation that perpetuates stereotypes in relationships and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by the Constitution.
Apart from that, Article 142 grants exceptional powers to SC. Under this, SC has the equivalent power of a lawmaker. So, in failure of Parliamentary legislation, the Courts can strike down the exception to Section 375.
Societal change: The laws alone cannot be used to fight marital rape issues, societal change is pivotal. Societal change is important, as we need to challenge not just the issue of patriarchy, but the very notion of marriage as a sacrosanct institution.
The Indian constitution in Article 14 grants no special recognition to any institution like marriage. So the rights that are extended to minor women can be extended to adult women too.
It is undisputed that marriage in modern times is regarded as a partnership of equals. It is an association of two individuals, each of whom has separate integrity and dignity. The violation of the bodily integrity of a woman is a clear violation of her autonomy under Article 21. It is high time for India to accept the observations of ECHR and criminalise marital rape in India.