By Radhika M
“Violence against women is not cultural, its criminal. Equality cannot come eventually; it is something we must fight for now.”[1]
The National Commission for Women received 19,730 complaints in 2019 and 23,722 complaints in 2020. Nearly one fourth of the complaints are issues of domestic violence. These increased rates are attributable to the lockdown which confined women and men in the houses and thereby making them more vulnerable to the violence.[2]
It is in this context; we need to take a deeper look at the issues faced by women including marital rape.
What is marital rape?
When a man engages in a sexual intercourse with a woman without her consent or will, he is said to have committed rape upon her. Rape is the violation of a person’s body.
Then, what is marital rape and what makes it different from rape?
Marital rape or spousal rape is the sexual intercourse with one’s own spouse without his/her consent. Is it punishable in law?
As the data shows, 150 countries have criminalized the act of marital rape punishable with imprisonment ranging up to 20 years (average). Then there are countries which explicitly excludes marital rape as an offence. Unfortunately, India is one of such 36 countries which explicitly excludes the criminalization of marital rape.
Sir Matthew Hale, who was Chief Justice of the Court of the King’s Bench between 1671 and 1676, in his work called Pleas of the Crown stated that:
“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself in this kind unto her husband, which she cannot retract.”[3]
This theory put forward by Sir Matthew Hale is called ‘implied consent’. It says that when a woman enters into marriage with a man, she is consenting to establish a matrimonial home with him. Therefore, she cannot deny his physical needs afterwards. The husband cannot be held guilty for committing rape on his wife as long as the marriage is subsisting.
The doctrine of implied consent survived for centuries until the feminist movements questioned its authority.
Marital Rape in India
Section 375 of the Indian Penal Code, 1860 defines rape. As per the section, a man is said to have committed rape on a woman, if he engages in a sexual intercourse with a woman;
- 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 because the woman believes that she is lawfully married to him, which in truth is not and the man is aware of this fact;
- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind 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 sixteen years of age.
Now the proviso to the section says that “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. This exception to the section explicitly states that sexual intercourse with one’s own wife, the wife being above the age of 15 is not rape. That is how the penal statute of the country explicitly excludes the marital rape as an offence.
One should understand that the phrase of ‘wife not being under fifteen years of age’ was intact even when the Protection of Children from Sexual Offences Act, 2012 (POCSO) prescribed punishment up to life imprisonment for rape of children under 18 years of age.
Moreover, the Prohibition of Child Marriage Act, 2006 prohibited the marriage of children below 18 years of age. So, in 2017, a Public Interest Litigation was filed before the Supreme Court by an organisation called Independent Thought inviting the court to look upon the issue.
In the case of Independent Thought Vs. Union of India[4] , the petitioner urged the Supreme Court to revisit the exception to section 375 of IPC. The petitioners claimed that the classification of the girls between the age of 15-18 years who are married and girls between the age of 15-18 who are not married, for the purpose of section 375 IPC was without any merit. The test of reasonable classification embedded in Article 14 of the Constitution fails in the case of exception to section 375 of the Code.
While the victims who were under the age of 18 years were able to prosecute the perpetrator under section 375 of the code, the married victims could not just because their perpetrators were their husbands. The petitioners contended that the intention of laws relating to children being the protection of childhood from all kinds of injuries (whether mental or physical), the exclusion of girl children from the protection is arbitrary.
The petitioners contended that early marriages and child births consequent to such marriages are affecting the physical as well as mental health of girl children. The higher maternal mortality rate should also be attributed to this under nourishment of girls under majority age.
Also, girls under eighteen years of age are pushed towards matrimonial cohabitation even before they are ready for it, which places them not in a different position than rape victims. Even when the universal age of consent has been fixed as 18 years, exception to section 375 of the Code creates an artificial distinction between the girl children aged below 18 years on the basis of marital status. Rejecting the contention that criminalizing marital rape may destroy the institution marriage, the Court observed that;
“The view that marital rape of a girl child has the potential of destroying the institution of marriage cannot be accepted. Marriage is not institutional but personal – nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable.”
And the Court ruled that given the context and purpose of their enactment, primacy must be given to pro-child statutes over the IPC. To bring harmonious interpretation of theses statutes as well as to protect the girl children from violation of her body in the tender age, the Supreme Court ordered that exception to section 375 of IPC shall be read as:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
The Supreme Court declined to interfere in the matter relating to marital rape of women above the age of 18 years as it was not mentioned by the petitioners.
Following the case, the Allahabad High Court dealt with a similar issue. In the case of Pradeep Tomar Vs. State of Uttar Pradesh[5], the accused married a girl who was only 16 years old at the time of marriage. The court rejected the contention that the girl may be allowed to go with the accused since they are married. The court opined that after the ruling in Independent Thought case, it is not permitted to do so. Even if the victim married him with her own consent, she shall not be allowed to cohabit with him until she reaches the majority age.
The Court ordered that the victim shall be moved to a shelter home where she can live until she attains the age of 18 years. After that, she may do whatever she thinks fit. If she wants to go with her husband or whoever, she can do so. Or if she wants to repudiate her marriage, all legal assistance shall be rendered to her. The court observed that:
“It must be remembered that those days are long gone when a married woman or a married girl child could be treated as subordinate to her husband or at his beck and call or as his property. Constitutionally a female has equal rights as a male and no statute should be interpreted or understood to derogate from this position. If there is some theory that propounds such an unconstitutional myth, then that theory deserves to be completely demolished.”
This is the position of marital rape in India. Even though, the issue has been highlighted by many activists and media several times, neither the Government nor the Court has given any positive response.
Justice Verma committee was constituted in December 2012 in the wake of Nirbhaya gang rape incident to recommend amendments to Criminal law relating to sexual offences. The committee submitted its report in January 2013.
The committee recommended an overall change in the manner which sexual offences were investigated and tried. The committee along with other suggestions recommended that the exception to marital rape in the Section 375 IPC must be removed. An extract from the report is:
“The law ought to specify that:
- A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation;
- The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity;
- The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape”[6]
But the recommendations were not adopted by the legislature.
Provisions under other statutes
Since there is no recourse for an aggrieved wife under the Indian Penal Code to prosecute her husband, still some alternative remedies are available.
They are
- Section 498A of Indian Penal Code
Section 498A of the IPC prescribes the punishment for the cases where the husband or relative of the husband subjects a woman to cruelty. Cruelty has been defined in the section as:
- any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
- harassment of any woman with an intention to induce any property from her (dowry).
The section prescribes an imprisonment up to three years for the offences coming within the ambit of cruelty.
So, the cruelty under this section can be interpreted as to include marital rape.
Recently the Gujarat High Court in the case of Nimeshbhai Bharatbhai Desai v State of Gujarat[7], held that marital rape is not an offence in the country as the common belief is that it can be potent tool in the hands of the wife to harass the husband and may eventually destabilize the institution of marriage. However, it is a form domestic violence and sexual abuse.
The court went on quoting the Morton Hunt, an American Psychologist and Science Writer of U.S.A,
“the typical marital rapist is a man who still believes that husbands are supposed to “rule” their wives. This extends, he feels, to sexual matters: when he wants her, she should be glad, or at least willing, if she is not, he has the right to force her. But in forcing her, he gains far more than a few minutes of sexual pleasure. He humbles her and reasserts, in the most emotionally powerful way possible, that he is the ruler, and she is the subject.”
The court opined that Indian Penal Code failed to address this issue. And the legislature fearing that it may collapse the entire institution of marriage and hurt feelings of various religious sections, disregarded the very problem of marital rape. The court observed that;
“Husbands need to be reminded that marriage is not a license to forcibly rape their wives. A husband does not own his wife’s body by reason of marriage. By marrying, she does not divest herself of the human right to an exclusive autonomy over her own body and thus, she can lawfully opt to give or withhold her consent to marital coitus. A husband aggrieved by his wife’s unremitting refusal to engage in sexual intercourse cannot resort to felonious force or coercion to make her yield.”
The Court observed that only a total prohibition on marital rape can stop the dehumanized treatment of women and teach the husbands that marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized.
Here in the case, the complainant filed a complaint against her husband under the sections of 376,377 and 498A of the Indian Penal Code. The complainant-wife alleged that he committed unnatural sexual acts with her which caused her both mental and physical injury. The court observed that a wife cannot initiate proceedings under section 376 of the code since marital rape is not criminalized here.
However, she can maintain the proceedings under section 377 and 498A. Also, the Court observed that the husband can also be held liable under section 354 (punishment for outraging the modesty of a woman) of the Code, as it doesn’t prohibit the prosecution of one’s husband.
- Under the Protection of Women from Domestic Violence Act
Section 3 of the Act set outs the definition of various kinds of domestic violence.
As per section 3(a), any act which harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse.
An explanation to the section defines sexual abuse. “Sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman.
The remedy available under the Act is the issuing of protection orders. The complainant can seek the prohibition of the accused from visiting house or a right to reside at the shared household or from abusing her again etc, depending upon the nature of the case.
However, if the complainant wants to prosecute the accused, she has to take recourse of the section 498A IPC.
Marital Rape is the blatant violation of Right to Life
Article 21 of Constitution of India says that everyone has a right to life. And right to life is more than a mere animal existence which includes right to live with dignity. And the Supreme Court has stated at various instances that rape is the violation of fundamental right ensured under Article 21.
In the case of Bodhisatwa Vs. Ms. Subdhra Chakroborty[8] the Supreme Court observed that;
“Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Rape is therefore the most hated crime. It is a crime against basic human rights and is violative of the victims most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21.”
In the case The State of Punjab vs Gurmit Singh & Ors[9], the Supreme Court observed that while a murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.
In the case of Suchita Srivastava and Anr. Vs. Chandigarh Administration[10], the Supreme Court while considering the question that whether the consent of a mentally retarded woman bearing pregnancy is required for abortion, observed that a woman’s right to make reproductive choices is part of ‘personal liberty’ under Article 21. The court observed that:
“It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected”
In the case of State of Punjab Vs. Major Singh[11], the Supreme Court observed that:
“The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses modesty capable of being outraged”.
While the Courts have firmly stating that the violation of a woman’s body is the violation of Right to life, the argument finds no place in the issue of marital rape. Every woman has a dignity irrespective of the fact that whether she is married or not. And when her body is violated without her consent, the emotional and physical state of the victim remains the same. Such degrading of a woman’s dignity is ignored when it is learnt that she is married and the perpetrator is her husband.
The court in the case of K.S Puttaswamy Vs. Union of India[12] held that right to privacy is a fundamental right protected under Article 21 of the Constitution.
There is no reason why marital rape shall not be construed as an infringement to right to privacy possessed by a married woman.
Such a classification, where a rape is excused because of the relationship the victim has with the perpetrator is unfair, unreasonable, and arbitrary. The fact that the marital rape is not criminalized is itself an infringement of Article 14 of the Constitution.
International obligations
Universal Declaration of Human Rights as well as International Covenant on Civil and Political Rights mandates that all persons shall be treated with equality and with dignity. In the marriage, both parties shall have equal rights.
Apart from this, Article 2(a) of Declaration on the Elimination of Violence against Women states that
“Violence against women shall be understood to encompass, but not be limited to, the following:
Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;”
The state parties are required to enact laws which can combat the above mentioned forms of violence against women.
Marital Rape in other countries
As mentioned earlier, 150 countries have decriminalised marital rape.
United Kingdom
Analysing the status of the offence in United Kingdom, from where we derived our present form of penal statute, we can see that it is criminalised there.
It was in the case of R Vs. R[13], the House of Lords ruled that marital rape is an offence. In this case, a man forcefully tried to commit sexual intercourse with his wife who was living in her parent’s house. Rejecting the contention for exemption in marital rape cases, it was held that the concept of implied consent in marriages is nothing but a common law fiction.
Such a concept was termed as “anachronistic and offensive”. The Court declared that a rapist is a rapist regardless of his relationship with the victim.
And the spousal rape is punishable under Sexual Offences Act 2003 in United Kingdom.
United States of America
Almost 50 US states have criminalized marital rape. Nebraska was the first state to criminalise spousal rape in 1975.
In the case of People Vs. Liberta [14] , a man was accused of raping his wife. In the trial he took the defence of marital rape exemption. The court while rejecting the claim observed that;
‘Where a statute draws a distinction based on marital status, the classification must be reasonable and must be based upon ‘some ground of difference that rationally explains the different treatment.’
Here the court observed that there was no rationality in discriminating victims of marital rape and non-marital rape. Consequently, the court held that such an exemption is unconstitutional.
Conclusion
Rape is a heinous offence regardless the marital status of a person. And the disturbing figures of such crimes happening in India, in normal course should have attracted attention from both legislature and judiciary. Legislature failing/fearing to criminalise marital rape owing to the resistance from religious segments which can affect their vote bank and the judiciary overlooking the issue because of the lack of clarity from the legislature, is indeed disgraceful.
When we say that there is an alternative remedy under section 498A IPC, the punishment provided under the section is only three years. Even using of the terms ‘cruelty’ for marital rapes and ‘rape’ for rapes is itself discriminatory.
United Kingdom, from where we derive the source to our penal statute, criminalised the offence in 1992. And we here in India still hold on to the traditional notions regarding marriages and the offences relating thereto.
It is shameful for a country which itself proclaims to be one of the strongest and progressive nations to not to criminalise one of the heinous offences.
Even though the Supreme Court while declaring section 497 of IPC as unconstitutional observed that woman is not some kind of property, does it live up to the fact in issues like marital rape? It is time for the legislature and Courts to look upon the issue once again.
References
- Statement by Ambassador Samantha Power, U.S. Permanent Representative to the United Nations, on International Day for the Elimination of Violence against Women, November 25, 2013 ↑
- Complaints received under the category “Protection of women against domestic violence” available at: pib.gov.in/ ↑
- Historia Placitorum Coronae by Matthew Hale, Page No: 629 ↑
- Independent Thought Vs. Union of India, [2017] 10 SCC 800 ↑
- Pradeep Tomar Vs. State of Uttar Pradesh, Matters Under Article 227 No. 4804 of 2020, delivered on January 27, 2021 ↑
- Justice Verma committee report, 2013 page no: 113 – 118 , available at: prsindia.org ↑
- Nimeshbhai Bharatbhai Desai v State of Gujarat 2018 SCC OnLineGuj 732 ↑
- Bodhisatwa Vs. Ms. SubdhraChakroborty (1996) 1 SCC 490 ↑
- The State of Punjab vs Gurmit Singh & Ors 1996 AIR 1393, 1996 SCC (2) 384 ↑
- Suchita Srivastava and Anr. Vs. Chandigarh Administration (2009) 9 SCC 1 ↑
- State of Punjab Vs. Major Singh 1967 AIR 63 ↑
- K.S Puttaswamy Vs. Union of India, (2017) 10 SCC 1 ↑
- R Vs. R [1991] UKHL 12 bailii.org ↑
- People Vs. Liberta 64 N.Y. 2d 152 casemine.com↑