INTRODUCTION
Sexual violence is
prevalent and presents itself in various ways in all institutions of life,
including the most fundamental unit of human society, the family. The judgements
given by the Indian courts in the past few years have pointed towards the
adoption of a more liberal and open attitude, reflective of the changing views
of Indian society. However, the existence of the marital rape exception in the
Indian Penal Code remains a pressing matter. Although several nations have
criminalized marital rape, India is one of 36 countries where it is still not
recognized as an offence.
‘Rape’ is defined under Section 375 of the Indian Penal Code as "forced sexual intercourse with a woman against her will or without her permission." However, exception 2 to Section 375 provides that non -consensual sexual acts by a man with his wife do not constitute rape if the wife is above the age of 15. As a result, forceful sexual intercourse, if it happens within the institution of marriage, would not be deemed rape. As a result, a woman's marital status becomes a defence against rape committed by her husband.
ARGUMENTS FOR AND AGAINST CRIMINALISATION OF MARITAL RAPE
Four arguments are
made in opposition to the criminalization of marital rape. First, there is an
ancient belief in Indian society that upon marriage, a woman gives implicit and
irrevocable consent to engage in sexual intercourse whenever the husband
desires. This concept stems from the antiquated notion that a woman is her
husband's property. Further, a woman is expected to fulfill sexual obligations
in a marriage because the goal of marriage is procreation, according to Hindu
law. Thus, the ordinarily sacrosanct right to consent is somewhat diluted
inside a marriage by the "right to expect reasonable sexual
relations," and ‘marital rape’ may therefore be treated differently than
‘rape’.
Second, the
criminalization of marital rape would disrupt the institution of marriage.
Marriages in India are considered a sacrament, tying two people together for
seven lives. Therefore, as marriages in India are a divinely established union,
the rights and duties of spouses in marital life should be beyond the purview
of criminal law. This sacramental and religious character of marriages in India
has been incorporated into legislation through the codification of personal laws.
This component protects men's sexual rights within the marriage. For example, a
Hindu man can use Section 9 of the Hindu Marriage Act to claim restitution of
conjugal rights and thus assert his religious "entitlement" to sexual
relations in court.
Third, the
criminalization of marital rape would result in vengeful women making false
allegations against their husbands. This justification may seem practical, but
just because a law brings with it the possibility of misuse is no reason not to
enforce that law in the first place. Also, gathering evidence in such cases can
be pretty challenging, especially when the victim shows no visible traces of
assault. So, even if the law recognizes marital rape, the burden is significantly
heavier on the wife to establish that the alleged sexual act occurred without
her consent than on the husband to prove the reverse. After all, even if the
law says otherwise, the culturally pervasive assumption that the expectation of
sex can be inferred in marriage does not disappear from the administration of
the law. Moreover, it is not always easy for victims of marital rape to
approach the judicial system. Even if they battle societal pressure and want to
make a complaint, they are still unable to access the legal system due to their
class or caste status and rural location.
Fourth, the
existing legislations provide enough remedies against sexual violence within a
marriage. Many family courts have regarded forced sexual intercourse in a
marriage as ‘cruelty’, which is a ground for dissolution of marriage. Under the
Protection of Women Against Domestic Violence Act 2005, aggrieved wives and
even live-in partners can claim civil remedies on the grounds of sexual violence,
such as maintenance or dispossession from home. Further, under section 498A of
the Indian Penal Code, a woman can file a complaint for sexual assault.
However, the point to be noted here is that all these legislations require that
the sexual violence complained of should persist over a long time and a single
act cannot be punished. Thus, it is crucial to include marital rape within the
purview of Rape laws, where even a single act of forced sexual intercourse can
be punished.
The Indian
constitution guarantees that any law which violates the fundamental rights of
any class of persons shall be void. The marital rape exception violates a
woman’s right to privacy and sexual autonomy under Articles 19 and 21. The
court has settled in Justice K S Puttuswamy v. Union of India[1] that the right to life under Article 21 is
not restricted to mere “animal existence” but also includes the right to live
with dignity and also that the right to make sexual decisions is envisaged in
the right to privacy. Thus, the marital rape exception is unconstitutional as
it infringes the right to privacy, which includes the sexual agency of the wife,
and must be removed from the Indian Penal Code.
Further, the exception is also violative of Article 14 as it differentiates between rape victims based on their marital status and age, which bears no rational nexus to the object of decriminalizing non-consensual sex. The relationship of the accused with the victim of rape holds no weight under the main provision and this neutrality must be maintained by striking down the marital rape exception.
RECENT DEVELOPMENTS
In the recent years there have been some efforts to make the criminalization of marital rape a reality. The Justice Verma Committee Report in 2013 acknowledged that the marital rape exemption is based on the common law doctrine of coverture, which is underpinned by the antediluvian notion that when a woman gets married, she provides tacit and irrevocable consent to have sexual intercourse at the whim of the husband. Referring to international authorities on marital rape, the committee proposed that the marital rape exception be removed from the IPC and also suggested that the law should specify that:
- The relationship between the perpetrator or victim, even if it is a marital relationship is not a valid defence against rape or sexual crimes and must also not be seen as a mitigating factor
- The relationship between the accused and the complainant should not have any relevance with regards to the inquiry into whether the complainant consented to the sexual activity.
The committee further observed that changes in the legislation must be supported by extensive efforts to raise understanding of women's rights to autonomy and bodily integrity, regardless of marriage or other personal connection, and there must be a shift in the attitudes of prosecutors, police officers, and others in the society.
The Committee's
reasoning for such recommendations was based on the understanding that the
sexual agency of a person does not vanish by him/her entering into the
institution of marriage. Sex is a personal decision and cannot be viewed as an
institutional entitlement. As a result, any male who violates the concept of consent,
which is based on sexual autonomy, must be adjudged as guilty.
Recently, the
issue of marital rape came up before the Delhi High court where a two-judge
bench gave a split verdict. Justice Rajiv Shakdher ruled that criminal law is
act or omission centred and, in most cases, is not concerned with the identity
of the person who has committed the offence, or his/her relationship with the
victim of the crime. Therefore, as the marital rape exception attempts to
protect the perpetrator based on his marital relationship with the accused, it
is also violative of article 14 of the constitution and must be struck down. He
pointed out that overturning the marital rape exception would not result in the
formation of a new offence as there has been no change in the ingredients of
the offence. The offence of ‘Rape’ is already defined in the substantive
portion of section 375 of the IPC, and the sexual actions stated in Clauses (a)
to (d) constitute rape if they fall within any of the seven circumstances
mentioned in the provision. Therefore, removing exception would simply broaden
the scope of section 375 to include even the offending husbands. He observed
that reading down, filling gaps, or removing elements of an unconstitutional
provision in a legislation is a valid judicial procedure used by courts to
separate what is unlawful and retain what is lawful.
However, Justice
Harisankar held that Exception 2 to Section 375 does not infringe a person’s
fundamental rights under the Constitution, and is founded on an intelligible
differentia. He also ruled that striking
it down would result in the formation of an offence. He reasoned that Judges sitting in courts cannot,
regardless of how powerful the counsel's arguments are, invent crimes or
deliver judgments that would result in an act that would otherwise not be an offence
being made an offence as this does not fall in the domain of the judiciary but
the legislature.
[1] (2017) 10 SCC 1.
About the Author: This post is prepared by Sonali Singh Rathore, Law Student from NALSAR University of Law. She can be reached at sonalirathore811@gmail.com
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