Marital Rape & Indian Laws: Social and legal Perspective

1.Introduction:

The term ‘Marital’ rape or spouse rape is defined as “the practice of a man unwillingly having intercourse with his spouse by force, threat of force or physical violence or when a woman is incapable of consent.” The Domestic Violence Act, 2005 indicates that the concept of rape is not limited to marital rape or any other kind of sexual abuse in an intimate relationship. The convention merely provides for compensation of civil damages. In India, right from the concept of marital rape there are no proceeding of criminal actions against the person indulging in the crime unless the woman is above 18 years old as per Section 375(2) of the IPC,1860. In India, marital rape is not a crime as the person after getting married is considered that marriage gives him an excuse for sexual affairs and the wife has already consent for sex to the person she is married with. Thus, no criminal offense of marital rape is established in India so the woman can go to court and file a case on the grounds of harassment and initiation of divorce proceedings against the same. Nonetheless, these grounds are not perfect notes, and not complete. While the High Courts in different parts of a country give mixed viewpoints on whether Rape includes Marital rape or not board is the term used is the issue. As apex court decision is still pending on the subject of criminalizing marital rape at par, and in the context of Section 375 in IPC, 1860, there prevails this unclearness as to the circumstances in which marital rape can be distinguished from the concept of rape in light of the relevant provisions under Hindu Marriage Act, 1955, the Domestic Violence Act, This Writeup is a Brief Description of the Marital Rape Question in the Constitutional Context of the Criminalization of marital rape in India.

2.Research Question:

• Whether the issue of marital rape in India still continue to be of a significant issue despite being addressed specifically in the Indian legal framework (IPC, 1860 to be precise)?
• How necessary is it to protect the right & dignity of married women to address the pervasive issue of domestic violence within marriages?
• What are the challenges and limitations faced by victims of marital rape in accessing justice?

3.Unveiling the History and Legal Landscape of Marital Rape in India:

The issue of marital rape in India is not a recent phenomenon, with instances occurring throughout history, but it has largely remained hidden from public awareness due to a lack of understanding. Victims often face the daunting prospect of speaking out, as doing so may jeopardize the social standing of their families.

The first recorded case of marital rape in India was the Queen Empress Vs. Haree Mohan Maiti¹, also known as the Phulmoni Dasi Case. It involved Phulmoni Devi, an eleven-year-old child bride, who tragically died from excessive bleeding when her husband, Hari Mohan, attempted to consummate their marriage. Despite clear evidence of sexual violence, the Calcutta High Court sentenced the husband to only 12 months of hard labor, citing the legal exception under section 375(b) of the Indian Penal Code, which did not consider sex with a wife under 10 years old as rape. In response, in 1892, Lord Lansdowne, the viceroy of India, introduced a bill to increase the age of consent from 10 to 12 years, but full criminalization of marital rape did not occur.[1]

In subsequent years, numerous cases concerning marital rape were brought to light. In a significant ruling, the Supreme Court, in the case of Independent Thought Vs. Union of India[2], held that sexual intercourse with a girl below 18 years of age constituted rape, regardless of her marital status. However, in the Harvinder Kaur versus Harmander Singh case of 1984[3], the Delhi High Court asserted that the Constitution should not intervene in household matters, fearing it would undermine the institution of marriage. Following the 2012 Nirbhaya Rape case, the Justice Verma Committee recommended criminalizing marital rape, emphasizing that marriage did not equate to consent for sexual acts. In 2019, while introducing the Women’s Sexual Reproductive and Menstrual Rights Bill, Member of Parliament Shashi Tharoor highlighted that marital rape is not solely about sex but rather the violence and harm inflicted upon women, underscoring the importance of consent.

4.Legal Framework:

4.1 Analysis of relevant laws and statutes related to marital rape:

Although the term marital rape per se is not been defined in any statute so far still the traces of marital rape can be observed:

The Domestic Violence Act, 2005 hints at marital rape by any form of sexual abuse in a live-in or marriage relationship. However, this only provides civil remedies only but not a criminal trial and there are exceptions to it. Marital rape is considered cruelty which is a grounds to get a divorce as per section 13 of the Hindu Marriage Act, 1955, as stated in several High Court Judgements of the different states across the country. And also, Marital Rape is considered as an offense under section 498(A) of IPC, 1860 which falls under the category of cruelty.

Section 498(A) of the IPC, 1860 outlines the consequences for husbands or their relatives who subject women to cruelty. This includes imprisonment for up to three years and a fine. Section 376 provides for punishment for rape. In this section, there is a provision of punishment for the husband who rapes this wife, provided the wife is less than 12 years. The term “cruelty” is defined as any intentional behavior likely to compel a woman to harm herself or cause significant danger to her life, health, or limbs, whether physical or mental. It also encompasses harassment aimed at coercing the woman or her relatives to fulfill unlawful demands for property or valuable security.

Section 13(2)(ii) Hindu Marriage Act, 1955 states that cruelty is a ground for the dissolution of marriage and may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.[4]

4.2Examination of international conventions and norms:

When exploring the examination of international conventions and norms related to marital rape, it’s essential to delve into the broader global context and the standards set forth by international bodies. Numerous key international instruments and norms are specifically designed to address gender-based violence, including marital rape, reflecting a concerted effort to safeguard the rights and dignity of individuals worldwide

In the case of R Vs. R[5] the House of Lords held that it is possible under English Criminal Law the commit rape on his own wife. The House of Lords and the Court of Appeal held that there is no exception to marital rape under English Law.

The United Nations Declaration on the Elimination of Violence Against Women underscores the global commitment to combatting violence against women, recognizing marital rape as a grave violation of human rights. It urges nations to establish strong legal frameworks and support systems to address such atrocities.

Similarly, the Istanbul Convention, adopted by the Council of Europe, represents a significant step in the fight against gender-based violence, including marital rape. It mandates signatory states to criminalize marital rape and provide essential support services for survivors, emphasizing a comprehensive approach to addressing the issue.

Regional human rights bodies, such as those in the Americas and Africa, play vital roles in promoting norms regarding marital rape within their regions. Through their decisions and recommendations, they contribute to shaping international standards and advancing efforts to combat gender-based violence globally.

International human rights monitoring mechanisms, like the CEDAW Committee and the Human Rights Committee, regularly assess states’ adherence to human rights obligations, often urging legislative reforms to address marital rape.

Moreover, comparative analyses of national laws on marital rape by international organizations provide valuable insights into global legal frameworks, aiding advocacy efforts and promoting collaboration among states to enact effective reforms that protect the rights and dignity of survivors.

4.3 CONSTITUTIONAL VALIDITY OF THE MARITAL RAPE:

Article 14 of the Indian Constitution ensures equality, requiring rational classifications. Section 375 of the IPC treats married and unmarried women equally, with specific provisions for marital rape. Article 21 protects personal liberty, but courts, like in Harvinder Kaur V. Harmander Singh, avoid interfering in marital matters to preserve the institution of marriage. However, the Supreme Court affirmed the right to privacy in Justice KS Puttaswamy (retd.) V. Union Of India.

Rather what Marital rape does say, is that sexual assault within a marriage is legally not rape, and will not be punished as rape because marriage is an institution that brings with it certain reciprocal rights and obligations, one of which is a “legal right to expect reasonable sexual relations. The right to consent is somehow conditioned within marriage by the right to expect reasonable sexual relations, and may therefore be treated differently, as long as it is not erased altogether. This is the legal version of eating your cake and having it too: “yes, consent is important, but also, rape within marriage is not exactly rape.”[6]

The Decision-making privacy means the ability to make intimate decisions that primarily involve one’s sexual or procreative nature and decisions regarding intimate relationships. The Supreme Court in many of the cases has also stated and recognized the right to refrain from sexual activity as a fundamental right guaranteed by Article 21 of the Constitution to all women, regardless of marital status. As a result, forced sexual coexistence is a violation of the Constitution’s Article 21.[7]

5. LACK OF CRIMINALISATION OF MARITAL RAPE AS A FUNDAMENTAL RIGHTS’ VIOLATION:

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 intrusion of the State in this sphere would disrupt this privacy. Thus, the State does not compel any two individuals to marry or divorce. However, the refusal of the State to enter this private space even in certain specific instances can be problematic. For example, if a wife is subject to cruelty in a marriage, then the State will have to enter this private sphere to criminalize this cruelty that the wife is subject to.[8] If the State does not do so, then the woman will have no redress legally. Thus, it is important for the State to penetrate this private sphere on certain occasions.

Marital rape is also a violation of the fundamental right of a woman specifically under Articles 14 and 21 of the Constitution of India (‘Constitution’. In this Part, we argue that the lack of criminalization of marital rape infringes on the fundamental rights of a woman. Even though this crime of marital rape occurs within the private sphere of a marriage, it is the responsibility of the State to penetrate through this private sphere. If the State does not penetrate this private sphere, then a woman is left without remedy when raped by her husband.

6. Legal Recourse for Victims of Marital Rape:

A common argument against advocating for the criminalization of marital rape is the belief that existing legal remedies are sufficient. However, in our analysis, we aim to show why this assumption is flawed by examining both civil and criminal law separately. When discussing the shortcomings of criminal law remedies, our focus is on the necessity of specifically criminalizing rape within marriage, rather than merely addressing violence against women. Additionally, we highlight the limitations of these alternative remedies in adequately addressing the severity of rape. On the civil law front, our argument centers on the ambiguity of the law and the conflicting ideologies within family law, which hinder our advocacy for the criminalization of marital rape.

6.1 CRIMINAL LAW:

Many often suggest Section 498A of the Indian Penal Code (IPC) as a potential alternative to directly criminalizing marital rape. This section was added to the IPC to address instances of cruelty against women. However, we contend that this option falls short for two main reasons. Firstly, there’s a clear distinction between cruelty and rape, both in terms of their nature and the actions involved. Rape entails a different level of harm and violation compared to acts of cruelty. Secondly, Section 498A isn’t equipped to effectively handle cases of rape, making it insufficient in addressing the severity of such offenses.

Feminist literature has long understood the importance of recognition of rape as a separate crime.[9] 8 Beyond that, the crime of rape is distinct because of the very nature of the crime itself. It definitely is a form of cruelty; however, this cruelty is distinct from physical violence and mental violence. It has complex patriarchal and power structures attached to it. This is also indicative through the treatment of rape as a distinct offence in the criminal statutes distinct from grievous hurt or assault.[10] A reform in rape law is a positive indication of betterment of women in the society as well.[11] Additionally, rape involves different requirements in evidence law as well.[12]

The first reason is because the threshold for conviction under cruelty is very high. It is not enough that the conduct of the accused is wilful and offensively unjust to a woman, but is further necessary that the degree of intensity of such unjust conduct on the part of the accused is such which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health.[13] This was said in a case where the husband used to have forced sexual intercourse with his wife and inserted a stick and his fingers in her vagina causing severe pains and bleeding which made the victim unconscious. Even in this case the court did not charge the accused under §498. This is in continuation of our earlier point regarding the peculiar evidentiary requirements of rape and this is more important in cases of marital rape. §498A does not have these specific nuances in the law relating to evidence as §375 does.

Second, to be convicted under §498A the conduct has to be done repeatedly or over a long period of time.[14] Therefore it is not possible to convict when the act of forced sexual intercourse is done one or two times. It must be carried on for a long period of time which is clearly harmful. This also ties in with a practical problem, which is the fear of the misuse of §498A.

6.2 Judicial Precedents:

Sakshi vs. Union of India (2004)

In the legal case Sakshi vs. Union of India (2004), a pivotal moment occurred within the Indian legal landscape. Sakshi, an NGO, bravely petitioned the Supreme Court of India to broaden the definition of ‘sexual intercourse’ to encompass all forms of penetrative sexual assault, including marital rape. Despite the importance of the issue, the Court chose not to directly address it due to legal precedent, opting instead to issue directives to improve trial procedures for sexual assault victims. These directives marked a significant stride towards fostering a more supportive and empathetic legal environment for survivors of such atrocities.

Independent Thought vs. Union of India (2017):

In the landmark case of Independent Thought vs. Union of India (2017), a pivotal moment unfolded in the advancement of women’s rights in India. Independent Thought, an NGO devoted to safeguarding children’s rights, boldly filed a public interest litigation challenging Exception 2 to Section 375 of the Indian Penal Code. This exception permitted husbands to engage in non-consensual sexual activity with underage wives aged between 15 and 18.

At the core of the issue was the recognition that such acts constituted rape and violated the fundamental rights of these young girls. By contesting the legality and morality of Exception 2, Independent Thought sought to correct this injustice.

In a historic ruling, the Supreme Court declared Exception 2 unconstitutional, removing the provision that previously shielded husbands from prosecution for such offenses. Henceforth, any sexual activity by a husband without his wife’s explicit consent, especially if she is under 18, would be deemed a criminal act. This ruling marked a significant stride towards addressing gender-based violence and safeguarding the rights of vulnerable women.

Delhi High Court split verdict on marital rape:

On May 11, 2022, the Delhi High Court issued a divided decision regarding the criminalization of marital rape in response to multiple petitions calling for Exception 2 to Section 375 of the IPC to be declared unconstitutional. Exception 2 stipulates that sexual intercourse between a husband and his wife, provided she is not under 15 years of age, does not constitute rape. The two judges on the bench held contrasting interpretations of this exception clause, reflecting divergent perspectives on its constitutionality.[15]

In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which although did not consider marital rape as a crime, did consider it as a form of domestic violence. Under this Act, if a woman has undergone marital rape, she can go to the court and obtain judicial separation from her husband.[16]However, the same doesn’t entirely protect the women from the crime and give her protection and justice in this regard. The whole legal system relating to rape is in a mess, replete with paradoxes and major legal lacunae come in the way of empowering women against marital rape.

The Amendment Bill, 2012 did not take into account the suggestions laid down in the J.S. Verma Report. The Parliament Standing Committee on Home Affairs in its 167th Report (‘Standing Committee Report’) reviewed this Amendment Bill, 2012 and also organised public consultations.[17]

6.3 Differing perspectives:

The Law Commission of India has not supported the move to criminalise marital rape because it may trigger an avalanche of false cases by spouses. The politicians on the floor of the House have expressed their reservations, as they perceive factors like literacy, poverty and a lack of awareness as obstacles to the implementation of the proposal. [18]

7. Analysis:

This analysis offers a comprehensive overview of marital rape in India, covering its historical, legal, and social dimensions. It discusses significant legal cases, including Queen Empress Vs. Haree Mohan Maiti and Independent Thought vs. Union of India, highlighting the challenges victims face in seeking justice. The legal framework, including the Domestic Violence Act and provisions of the Indian Penal Code, is examined, revealing gaps in addressing marital rape effectively. International conventions like the UN Declaration on the Elimination of Violence Against Women are cited as guiding principles for combatting gender-based violence. Constitutional implications are assessed in terms of equality and personal liberty under Articles 14 and 21 of the Indian Constitution. Despite existing legal remedies such as Section 498A of the IPC and civil law provisions, they are deemed inadequate in addressing the severity of marital rape. Key judicial precedents are discussed, leading to recommendations for legislative reforms, uniform sentencing policies, and amendments to evidence laws. Overall, the analysis underscores the urgent need for comprehensive reforms to combat marital rape and promote gender equality within marriages.

8.Recommendation & Suggestions:

So, after this elaborate and threadbare discussion on each and every aspect of marital rape one thing is crystal clear that marital rape is a necessary social evil which has strongly engulfed India. There is urgent need to eliminate the same from the country. Following are some of the vital suggestion to achieve that objective:

1. Marital rape must be fully criminalized in India.
2. Both minor as well as major married women must be legally protected against marital rape. There must not be any differentiation between the two in this regard.
3. The punishment for rape and marital rape must be same.
4. Marital rape must not be treated as an exception to the offence of rape and in order to do that Exception 2 of Section 375 of Indian Penal Code must be repealed.
5. The provisions of Indian Evidence Act must apply to marital rape in the same way as they apply to rape.
6. Marital rape must be made a gender neutral offence.
7. Adequate safeguards must be attached to marital rape laws so that they are not misused by anyone like the husband must not be arrested straightaway on the allegation of marital rape by his wife unless proper investigation is done in this regard, the family members of accused husband must not be harassed in such cases etc.
8. There must also be a provision of penalty on the accuser in marital rape laws for leveling false charges of marital rape.
9. Marital rape can also be made a specific ground of divorce.
10. Special fast track courts with female judges and female staff must be established all over India to deal with the cases of marital rape. Media trial of such cases must not be allowed.

9.CONCLUSION:

The debate on marital rape is crucial for ensuring equality for married women, who often face limitations in both public discussions and legal systems. The absence of criminalizing marital rape is a significant flaw in the law, contradicting women’s rights principles. We’ve examined various arguments against criminalization, finding them lacking. Traditional views on family and gender roles don’t withstand legal scrutiny. Section 375’s exemption clause is unconstitutional as it violates equality principles. Existing legal alternatives are inadequate; focus should be on criminalization. Cultural norms shouldn’t hinder criminalization efforts. We propose removing the exemption clause, clarifying that marital status isn’t a defense, advocating for uniform sentencing, and amending evidence laws to address prosecution challenges.

[1] Queen Empress Vs. Haree Mohan Maiti,(1886) ILR 8 All 622.

[2] Indian Kanoon, www.indiankannon.org . Independent Thought Vs. Union of India on 11th October 2017

[3] Harvinder Kaur versus Harmander Singh AIR 1984 Delhi 66, ILR 1984 Delhi 546 .

[4] Indian Kanoon, www.indiankanoon.org        

[5] R v.R[1992] 1 AC 599

[6] Gauthambhatia,The Marital Rape Exception Case, Indian Constitutional law and philosophy, Jan 19, 2022 https://indconlawphil.wordpress.com/2022/01/19/the-marital-rape-exception-case-two-constitutional-issues/

[7] Primelegal, Marital Rape in India-Can It be Crminalized?,PRIME LEGAL, 25THOct2022

[8] In this instance, the State has entered into the supposed private sphere by criminalizing activities that happen in the private spaces of husband and wife.

[9] Stanford Encyclopedia of Philosophy, Feminist Perspectives on Rape, June 21, 2017 available at https://plato.stanford.edu/entries/feminism-rape/ (Last visited on December 20, 2017).

[10] See The Indian Penal Code, 1860. While hurt is covered from §319-338 in a separate part, the offence of rape is covered from §375-376E.

[11] Ronald J. Berger, Patricia Searles & W. Lawrence Neuman, The Dimensions of Rape Reform Legislation, 22 Law & Society Review 329 (1988).

[12] See The Indian Evidence Act, 1872, § 114A.

[13] Bomma Ilaiah v. State of A.P., 2003 SCC OnLine AP 38 : 2003 Cri LJ 2439.

[14] Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.

[15] https://timesofindia.indiatimes.com/india/why-5-judges-were-not-on-same-page-on-same-sex-marriage/articleshow/104551237.cms

[16] The Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005), Section 3 Exp.1 (ii)

[17] Standing Committee on Home Affairs, Fifteenth Lok Sabha, Report on The Criminal Law (Amendment) Bill, 2012, One Hundred and Sixty Seventh Report, 45, (December 2015).

[18] https://learninglink.oup.com/static/5c0e79ef50eddf00160f35ad/casebook_29.html