[Guest Post] Criminalising Marital Rape in India by Shreya Rathore & Amrisha Gautam

Consent is like boxing. If both people do not agree to it, then one person is committing a crime
John Oliver
You might’ve heard of the term “rape culture”; pause for a minute to let those two words sink in. What is the first thought that comes to your mind when you come across the word ‘RAPE’? You’ve probably heard or read stories about it and felt your blood boil with rage and your heart skip a beat. Some people have to live with that word circling their minds forever. Because the feeling of being touched against your will is worst. Because the pain you felt in the moment and the pain you felt when it was over it harasses you for the rest of your life. Now think of the word “culture.” It’s humanity. It’s society. It’s a tradition. It’s customs. It’s art, and music, and literature, and philosophy. But it’s also a mentality. And in the world we live in, this mentality is becoming more toxic than ever.
Imagine someone pointing out a girl in a short skirt and a tank top and then turning to you and saying, “God! Is she asking for it or what?” Imagine watching the news and seeing reporters argue about whether a rape victim brought it upon themselves when they got drunk at a party and passed out, unaware of what was happening to them. Guess what? You don’t have to imagine, because this happens for real every day. Rape culture is a concept that’s been institutionalized in our society that makes sexual violence inevitable. To put it simply: we allow it to happen. We allow it when we slut-shame, victim blame, and objectify bodies. We allow it when we make it okay for rapists to get off with a light sentence. We allow it when we don’t blink an eye at a cry for help. We allow it when we stick to the belief that “only women get raped” and laugh when the roles are reversed. We allow it when many cases of rape go unreported because of rape culture itself — when victims are too afraid to press charges or testify in the fear of what people will say or think and whether they’ll get the justice they deserve.[1]
Marital rape refers to rape committed when the perpetrator is the victim's spouse. The definition of rape remains the same, i.e. sexual intercourse or sexual penetration when there is lack of consent. Therefore, an essential ingredient to prove the crime of rape is to prove the lack of consent. This burden to prove, the lack of consent, often rests upon the victim. In some instances, as in the case of minors, it is presumed that consent does not exist as they are presumed by law to be incapable of consenting to such sexual acts. On the other hand, there are also instances when consent is presumed to exist. Often, this presumption exists when the victim and the perpetrator are married. In such instances, the idea of marital rape becomes antithetical.

Marital Rape: A non-criminalized crime in India
The law in India does not criminalize marital rape, i.e. the Indian Penal Code, 1860 does not recognize that it is a crime for a husband to rape his wife.
Section 375 of IPC (Indian Penal Code) defines the rape as all forms of sexual assault involving nonconsensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over 15 years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution. According to current law a wife is presumed to deliver perpetual consent to engage in sexual relations with her husband after entering into marital relations. In almost every country of the world has recognized marital rape as criminal offence such as Nepal, Britain or the US. Even when countries recognize rape as a crime and prescribe penalties for the same, they exempt the application of that law when a marital relationship exists between victim and perpetrator. This is often called the ‘marital rape exception clause’.

India is one of the 36 countries still not criminalized marital rape. The time IPC was drafted women were not considered as the separate independent legal entity. As a result, she did not possess many of the rights now guaranteed to her as an independent legal entity, including the right to file a complaint against another under her own identity. which basically excludes activities executed by spouses against their wives from being considered of "rape," is to a great extent influenced by and got from this previously existing doctrine of merging the woman’s identity with that of her husband.
Allowing spousal rape and not criminalizing it, effectively means that human dignity can be accorded lesser value in the case of a woman when she is married. It is inherently wrong and problematic to assure dignity and sexual autonomy to the husband and not the wife. The argument that the act cannot be criminalized to protect the stability of the institution of marriage is base and illogical. Rape is a reprehensible crime whether a woman is married or not. It is a crime against humanity. It is unfortunate that the Modi government choose to defend this ‘institution’ of marital rape.
Women were chattel to their husbands, and this meant that women did not have any rights in the marriage. In such a scenario, it would not be possible to fathom a husband raping his wife since the husband was the master to the wife, and enjoyed privileges over her body. Along with this justification, the unities theory also existed. This theory rested on the idea that after marriage, the identity of the woman merged with that of her husband. Therefore, law did not give the married woman a personality independent of her husband. This is linked to the previous justification in terms of looking at women as the chattel of the husband.
Femininity has come to be linked with submissiveness in sexual relationships i.e., power for men and powerlessness for women. This accounts for the increasing violence against women, within marriage and outside of it. 
Patriarchal society's denial of social and economic autonomy of women and its appropriation of women as male sexual property are only too willingly protected by the state and its laws

This relation between marriage, sex and violence is analyzed in this article where suggestions for a more sensitive approach by the legal system are proposed.
Of late, crimes against women have received a great deal of attention. Notwithstanding the same, violation in the private realm continues. In Indian law, marital rape is not recognized, indicating a glaring lacuna in the law as a man having sex with his wife above fifteen years of age is exempted, though it may be without her consent. At the same time, however, intercourse with a girl below sixteen, though with her consent is rape. Secondly, punishment for rape of a wife below sixteen is very mild compared to that for rape of another woman, namely it is only two years with fine. Marital rape is equated with real rape only when the wife is below twelve years of age and sexual intercourse is without her consent.
Till 1983, Indian law on rape gave the least protection to the wife from sexually impermissible behaviour of her husband, whether she was living with him or separately. However, the amendment in 1983 to the Indian Penal Code, 1860 gave a slight leeway by penalizing the husband who had sexual intercourse forcibly with his wife without her consent that too, during judicial separation. It was a mild punishment not in the category of rape, and the acrimonious question of consent was still the Achilles’ heel.[2]

Violation of fundamental rights
Criminalizing marital rape could become a 'phenomenon destabilizing the institution of marriage' and that Section 498A (harassment caused to a married woman) is often misused, and so can criminalize marital rape.
It is a crime of violence that not only damages the body but which also leaves a permanent scar in the mind of the victim. In India rape is a penal offence under S.375 and 376 of IPC. S.375 of IPC, mentions in its exception clause that - “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age is not rape.” The exception prima facie violates Art.14 as it creates a classification between consent given by married and unmarried women. The concept of marital rape goes beyond the virtues of Article 21 i.e. right to live with human dignity. However women in Indian setting do not make it an issue of complaint because it is against social norms.
In Bodhisattwa Gautam v. Subhra Chakraborty[3] the SC held that” rape is a crime against basic human rights and a violation of the victims” most cherished of fundamental rights, namely the right to life enshrined in Article 21 of the Constitution. Yet it negates this very pronouncement by not recognizing marital rape. Though there have been some advances in Indian legislation in relation to domestic violence, this has mainly been confined to physical rather than sexual abuse. The punishment provided for non-consensual sexual intercourse by a man with his wife living separately is, however, compared to that is provided for consensual or non-consensual sexual intercourse with his own wife when she is below the age of fifteen years of age, which, by virtue of exception 2 of section 375 of the IPC, amounts to rape, is very mild. No court is empowered to take cognizance of the offence of sexual intercourse by husband upon his wife during separation where the persons are in a marital relationship
People saying the rape provision is being misused in marital rape, so categorically there is no data anywhere in the country that says rape provisions are being misused. Misuse happens when the courts are unable to catch a false case. Women do file false rape charges, but the courts catch them. In false rape cases, the courts are quite capable to distinguish between a genuine case and a false case.
For example, suppose a woman falls in love with her partner and has sex and then the man says I won't marry you, and she files a rape case... Now, these kinds of cases, the courts are able to make out at once. Its one thing to say there will be false rape allegations, quite another to say a false rape charge will end up in conviction. The courts are quite capable in weeding out such cases. If you say that false cases will happen and therefore you won't change the law, it means you don't have a legal system in place at all. There are false intellectual property rights cases, false rent cases, false property cases, and false commercial cases. Of course, there are false cases in the system, but they are being weeded out.

[1] https://www.huffpost.com/
[2] https://www.scconline.com/ - (2018) 11 NUJS L Rev 121
The criminalisation of Marital Rape in India
[3] 1996 1 SCC 490

Shreya Rathore and Amrisha Gautam are law students at UPES, Dehradun. Shreya Rathore can be reached at [email protected]

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