Daily News Analysis

Marital Rape

2nd September, 2021 Society

Context

There is a need of comprehensive legislation towards marital rape

Background

  • The High Court of Chhattisgarh recently decided on a criminal revision petition challenging the charges framed against the applicant husband.
  • Based on the allegations of his wife, charges were framed by a trial court under Section 376 (rape), Section 377 (carnal intercourse against the order of nature) and Section 498A (cruelty towards wife by husband or his relatives) of the Indian Penal Code (IPC).
  • The High Court upheld charges under Sections 498A and 377 but discharged the husband under Section 376 on the ground that by virtue of Exception 2 to Section 375 (the definition of rape), sexual intercourse by a man with his own wife(provided she is over the age of 18) would not amount to the o ence of rape.
  • Since the High Court was bound by the law, which exempts husbands from being tried or punished for raping their wives by creating the legal fiction that all sex within marriage is consensual, no other conclusion was open to the Court.
  • Notwithstanding this, the discrepancies and failings of Indian criminal law, highlighted by the judgment, deserve scrutiny.

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.

 

  • It is high time adult women are accorded the same protection and dignity in marriage.

 

Way Forward

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.

Legal bottlenecks

  • 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.