STATUS OF MARITAL RAPE IN INDIA

“Rape is not merely a physical assault; it is often destructive of the whole personality of the survivor..”

                                                                                                    – Subramonium Prasad, J…

The English word rape is derived from the Latin word rapio, which means to seize. It refers to the primary element of the said crime, which is a forced seizure. In addition to defining rape, Section 375 of the Indian Penal Code (IPC),1860, or Section 63 of Bhartiya Nyaya Sanhita (BNS), 2023 lists seven concepts of consent that, if bridged, would render a man’s rape of a woman. In the past, it was considered rape if someone put their penis into a woman’s mouth, anus, or vagina without her consent. But currently, If someone puts an object inside someone’s vagina or any other part of their body without their consent, it is still called rape. An individual who commits such a crime could be subjected to the punishment prescribed under Section 376 of the Indian Penal Code (IPC),1860, or Section 64 of Bhartiya Nyaya Sanhita (BNS), 2023.

Justice Krishna Iyer in Rafiq Vs. State of U.P., 1980 SCC(CRI) 947, the Honorable Judge held, “ murderer kills the body whereas the rapists kill the soul.”

Thus, it can be inferred that rape is a crime against society as a whole, not just the victim, who is a woman. A woman is thrown into a severe emotional crisis, destroying her entire psychology. Rape is thus the most despised crime. Such a crime leads to a violation of the fundamental right to life.

The major exceptions to the said crime mentioned in Section 375 or Section 63 of Bhartiya Nyaya Sanhita (BNS), 2023  are as follows:

“A) A medical procedure or intervention shall not constitute rape.

1. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

The second exception is known as marital rape and acts as a legal safeguard for the husband who has forced sexual intercourse with his wife.

Marital rape, also known as spousal rape, refers to non-consensual sexual relationships between a man and his spouse that are obtained through coercion, threats of coercion or abuse, physical or psychological assault, or when the woman is unable to give consent. It covers any type of penetration, whether oral, vaginal, or anal, that is performed against the woman’s will or without her consent. The stigma associated with marital rape contributes to the trauma’s invisibility, as do the effects on the victim’s physical, mental, sexual, and reproductive health.

Despite being a signatory to the Universal Declaration of Human Rights (UDHR), India is one of the few countries in the world that has not explicitly decriminalized marital rape. Just fifty-two nations currently have laws that recognize marital rape as a criminal offense. The 200^th Law Commission regarded the claim that additional violent crimes done by a husband against his wife should be criminalized, but rape should be exempt from this regulation. It expressed concern that making marital rape illegal would result in “excessive interference with the institution of marriage”

A departure from the conventional narrative occurred in 2012 when a committee led by former Supreme Court Justice J.S. Verma proposed making marital rape a felony. The Verma committee stated that there ought to be an exception stemming from the outdated concept that married women were their husband’s property and had given their unconditional consent to their partners’ sexual desires. The committee advocated deleting the exception provision and stating that a person’s marital status should not be considered when assessing whether or not permission was granted.

Marital rape was not declared a criminal offence in the Criminal Law (Amendment) Bill, 2012, which was enacted in response to the Verma Commission’s conclusions. The Parliamentary Standing Committee on Home Affairs, which evaluated the draft, rejected any request to criminalize marital rape. The committee argued that there would be more stress on the “entire family system” and that “the committee may perhaps be doing more injustice.” Furthermore, it believed that suitable remedies were already in place, such as the Protection of Women from Domestic Violence Act, 2005 (PWDVA, 2005), Section 498A of the Indian Penal Code, and a plethora of other personal laws governing marriage and divorce.

In 2017, the Indian Supreme Court raised the marital consent age from 15 to 18 in the landmark case Independent Thought v. Union of India, AIR 2018 SC (CRIMINAL) 229. The court ruled that it breached Articles 14, 15, and 21 of the Constitution by excusing minors’ rape during marriage.

While all married minor women are now protected, rape against married women over the age of 18 remains decriminalized, therefore the advancement is still limited. According to the National Family Health Survey, 32% of married women reported experiencing physical, sexual, or emotional abuse from their current spouses between 2019 and 2021, and 82% of married women aged 18 to 49 who reported sexual abuse named their current spouses as the perpetrators. Meanwhile, 9.9 out of every 10 cases of sexual assault in India go unreported, according to the same statistics.

The arbitrary nature of Exception 2 of Section 375 is highlighted in Explanation 2 of Article 2 of the Medical Termination of Pregnancy Act (1971). The Act permits abortion in circumstances when the woman’s mental health has suffered a “severe injury” as a result of being raped. In the recent case of X v. The State of Madhya Pradesh, the above-mentioned provision was applied.

In Nimeshbhai Bharatbhai Desai v. State of Gujarat, Criminal Misc. Application No. 26957 of 2017, the Gujarat High Court deemed marital rape an odious crime but did not invalidate the exception provision or compel the state to do so.

In RIT Foundation Vs. The Union Of India, W.P.(C) 284/2015 & CM Nos.54525-26/2018W.P.(C) 284/2015 & CM Nos.54525-26/2018, the Delhi High Court issued a mixed verdict about the country’s criminalization of marital rape. Judge Rajiv Shakdher deemed the current act invalid, stating that a woman’s right to life and liberty is fundamentally dependent on her freedom to revoke her consent. Justice C. Harishanker refused the plea to make marital rape a felony, stating that the legislature must approve the new legislation since the issue “requires consideration of various aspects including social, cultural, and legal.”

In Hrishikesh Sahoo Vs. State of Karnataka, Criminal Petition No. 5515 of 2018, the constitutionality of the said exception (2) to section 375 is to be decided by the Honorable Supreme Court of India.

Conclusion:

Throughout history, the Indian government has enacted and amended various laws to protect women. However, it takes a long time to pass legislation criminalizing the horrible crime of marital rape, which is committed by wives against their own husbands. India remains the leader in preserving and enhancing its cultural customs. It is absurd that the Indian Parliament, via the Medical Termination of Pregnancy Act, explicitly recognizes that marital rape causes irreversible harm but refuses to declare it a crime under the Criminal Code. Even while Indian tradition maintains that a married woman must adhere to her husband’s wishes, the same society advocates for women’s consent and dignity in all things affecting them. Women participate in marriage to keep the religious ceremonial balanced.