Criminalisation of Marital Rape
11th September, 2021 Society
Figure 2: No Copyright Infringement Intended
- Multiple Judicial rulings have been confusing in regard to the marital rape.
Multiple Judicial Rulings:
- In 2017, the Supreme Court, in Independent Thought v. Union of India, refused to delve into the question of marital rape of adult women while examining an exception to Section 375 (rape) of the Indian Penal Code (IPC) which allows a man to force sex on his wife.
- Recent rulings by High Courts have been contradictory— one backed marital rape as a valid ground for divorce, while another granted anticipatory bail to a man while concluding that forcible sex is not an “illegal thing”.
Court Obervations regarding Marital Rape:
- Supreme Court highlighted that legislative immunity given to marital rape stemmed from the “outdated notion that a wife is no more than a subservient chattel of her husband”.
- Gujarat High Court has held that “a law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape”.
- According to Gujarat High Court, Marital Rape allows the men and women to believe that wife rape is acceptable. Making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape.
- in the context of privacy in State of Maharashtra v. Madhukar Narayan Mardikar, the top court observed that no one has a right to violate the person of anyone else, including of an “unchaste woman”.
- In Suchita Srivastava v. Chandigarh Administration, the top court backed a “woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods”.
- The court has held that “rape is not only a crime against the person of a woman, it is a crime against the entire society”.
J. S. Verma Committee Observations:
- It had recommended the removal of the marital rape immunity.
- The report underscored the fact that marital rape immunity had been withdrawn in most foreign jurisdictions.
- According to the Report, the relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity.
- The European Commission of Human Rights in R. v. UK had concluded that “a rapist remains a rapist regardless of his relationship with the victim”.
- Canada had repealed provisions in the Criminal Code which denied criminal liability for marital rape in 1983.
- South Africa criminalised marital rape in 1993.
- In Australia, the common law ‘marital rape immunity’ was legislatively abolished in all jurisdictions.
- Section 375 of the IPC defines the offence of rape. It lays down which physical acts are required to make out the offence, and it is a very broad definition.
- The second important element of this definition is consent. Where these acts are done without the consent of the woman, then the offence of rape is made out.
- This is the general rule, but there is an exception, which says that sexual acts by a husband with his wife, if she is 18 years of age and above, would not be rape.
- Section 375 creates the legal fiction that a wife always consents to her husband, which in effect means that her non-consent is irrelevant.
- It is of course possible for there to be reprieve for rape within a marriage, but not as rape.
- If there are physical injuries, then there can be reprieve for that separately. Marital rape may be recognised as a form of cruelty, it may be a ground for divorce, but it is not punished as rape, which is a very distinct wrong and has very distinct terms.
Why Still in Law Books:
- Parliament did miss an opportunity to enact changes, as recommended by the Justice Verma Committee.
- The official response was that they wanted further discussions around marital rape laws before they could enact it because it involves other questions of law as well.
- The Supreme Court missed a fantastic opportunity to go into these matters in the Independent Thoughtcase in 2017.
- a lot of people, including still believe that criminalizing marital rape will somehow threaten the ‘institution of marriage’ and will become some sort of a witch-hunt against
- The extent of poverty, illiteracy and diversity in this country make the issue complex.
Reasons behind Marital Rape:
Challenges in Provisions
- First, the marital rape exception is inconsistent with other sexual offences, which make no such exemption for marriage.
- Thus, a husband may be tried for offences such as sexual harassment, molestation, voyeurism, and forcible disrobing in the same way as any other man but not for the marital rape.
- As a result, penetrative intercourse that is penile-vaginal is protected from criminal prosecution when performed by a husband with his wife, even when done forcibly or without consent.
- If there is an underlying rationale to this extremely limited exemption, it is not immediately clear.
Deep rooted Patriarchy
- The marital rape exception is an insult to the constitutional goals of individual autonomy, dignity and of gender equality enshrined in fundamental rights such as Article 21 (the right to life) and Article 14 (the right to equality).
- In Joseph Shine v. Union of India (2018), the Supreme Court held that the offence of adultery was unconstitutional because it was founded on the principle that a woman is her husband’s property after marriage.
- The marital rape exception betrays a similar patriarchal belief: that upon marriage, a wife’s right to personal and sexual autonomy, bodily integrity and human dignity are surrendered.
- Her husband is her sexual master and his right to rape her is legally protected.
Destroy the Basic Institution of Marriage
- A commonly cited rationale for preserving the marital rape exemption is that recognising marital rape as a criminal offence would ‘destroy the institution of marriage’.
- This was the government’s defence in Independent Thought v. Union of India (2017).
Challenges in ascertaining the conviction:
- Another argument frequently raised against the criminalisation of marital rape is that since marriage is a sexual relationship, determining the validity of marital rape allegations would be difficult.
Not Against Institution of Marriage:
- The government defended exception to marital rape inIndependent Thought v. Union of India (2017) saying it against the institution of marriage.
- However, rejecting this claim, the Supreme Court observed, “Marriage is not institutional but personal– nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable.”
- In this context, marital rape can be taken out of the exception.
Criminalise the Marital Rape:
- The United Nations Declaration on the Elimination of Violence against Womendefines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.
- In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government should criminalize marital rape.
Justice Verma Committee Report:
- The JS Verma committeeset up in the aftermath of nationwide protests over the December 16, 2012 gang rape case had also recommended the criminalisation of the marital rape.
- By removing this law, women will be safer from abusive spouses, can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse.
Women’s Rights Awareness Programme:
- Awareness campaign based in Kenya can provide shelter, counselling, practical and legal advice and other services to survivors of gender based violence.
- Educational and prevention programs on local, state, and national levels can be initiated for spreading awareness.
- It is shocking that Exception 2 to Section 375 of the IPC survives to this day.
- Antithetical to the liberal and progressive values of our Constitution, and violative of India’s international obligations under instruments such as the Convention on the Elimination of All Forms of Discrimination against Women, the provision underlines women’s subordination to men, especially within marriage.
- In 2017, the Supreme Court, in Independent Thought, had read down the exception so that husbands who raped their minor wives could no longer hide behind it.
- Societal change is very important.
- It is not only patriarchy or misogyny that needs to change, we need to challenge notions about the sanctity of marriage.
- We need to check ourselves every time we indulge in blaming the victim.
- We also need to challenge our conservative mindsets when it comes to discussing sexual offences or offences that take place within the family.