The definition of rape provided in section 375 of the Indian Penal Code[1] is not significantly different from the definitions of rape found in rape in bed or marital rape. It is, in every way, the same as rape, with the exception that the perpetrator is the husband and the victim is the wife. Because it is widely assumed that if a wife consents to the establishing of a married relationship, she is tacitly giving her husband permission to engage in sexual intercourse whenever he so desires. This argument is bolstered by the second exception stated in Section 375 of the IPC[2], which expressly decriminalises rape committed within the context of a married couple’s relationship.
The 8th edition of the Black’s Law Dictionary[3] classified marital rape as “a husband’s sexual intercourse with his wife by force or without her consent.” Marital rape occurs when a husband uses his wife’s body for his personal sexual pleasure. The husband thinks his wife’s body is his. Marital rape is rarely recognised as such, making it harder for women to get a divorce or other recourse. Only 36 countries allow marital rape, including India. 150 countries criminalise marital rape. It’s surprising that countries punish rape yet exclude married couples. The section features a “marital rape exclusion clause.”
In Hale’s Doctrine[4] marital rape was once considered as an outlier. In 1670s England, Chief Justice Matthew Hale wrote, “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract: the wife has given up herself in this kind unto her husband, which she cannot retract”.
In this paper, the researcher looks into the legal difference that comes from the fact that the rules on marital rape are not very clear, and how this difference affects family law. Its goal is to show why rape in a marriage should be seen as a reason for divorce in and of itself, rather than as a sign of cruelty, which is how the idea has usually been understood. the history of rape in marriage in India, how the law and the courts have dealt with it, and why it should be a real reason for divorce because it goes against a woman’s basic rights. The paper also looks at a recent ruling from the Kerala High Court that explains how rape in a marriage can be a reason for a divorce.
Research Objectives
- To study whether marital rape can be a ground for divorce
- To analyze the judicial angle over it using various case laws
Marriage as an institute in India
The institution of marriage has always been given a lot of respect, particularly in countries like India. It is argued that if a law were to be deemed a reason for divorce, then it would drive a wedge between the institution of marriage and the sanctity of the union.
Former Chief Justice of India Dipak Misra stated, “In my opinion, marital rape should not be considered a crime in India since it will promote anarchy in families, and our society depends on its family platform for its success in protecting family values.”[5]
In, Nimeshbhai Bharatbhai Desai Versus State of Gujarat[6] , The case showed that making marital rape a crime would mean changing religious laws like the Hindu Marriage Act of 1955, which says that wives must have sex with their husbands (section 9 of the HMA, which talks about restitution of conjugal rights, goes in the same direction).
Legislative & Judicial Angle
Section 13 of the Hindu Marriage Act, 1955[7] encircles cruelty as a remedy for divorce: — “(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty.”
The criminalization of rape within marriage has been a long process in most governments. In India, the structure of the family has evolved over the course of centuries, and it is believed that it is now capable of resolving concerns pertaining to marriage.
The 42nd Law Commission Report[8] first addressed rape. Also, mistreating women is unlawful. Thus, many fear that making marital rape criminal or a separate ground for divorce will strain the family system and degrade marriage. This study influenced several laws. This paper only shows how the law commission regards marriage rape. This report presented two ideas. First, no exclusion clause for judicial separation. The husband cannot be charged with rape if he sexually assaults her against her will. The Law Commission’s 172nd report[9] addressed exemption clause 2’s legitimacy. The commission asked why this sort of husband-on-wife violence isn’t criminalised because all others are? Based on this argument, the commission completely rejected the idea. And said that interference in an individual’s personal life would be unnecessary and disguised the link between marital rape and marriage sacredness. One commission recommends criminalising spouse rape. Because sexual assault against women is so prevalent, Justice J.S. Verma’s[10] law commission. The committee suggested revisions in their report. One was to make marital rape a crime by deleting exemption 2 from section 375 of the Indian Penal Code and clearly stating that any relation being husband-wife or any such relation could not be used as a defence or judging consent. The research also stated that this immunity has been eliminated in many nations and that marriages are now seen as a partnership between two equals rather than a contract where the bride becomes a servant. The 2012 Criminal Law Amendment Bill[11] followed. The bill redefined “rape” to “sexual assault” to extend the offence, but it did not criminalise marital rape. Thus, the 2012 amended bill does not incorporate J.S. Verma committee feedback. Parliament’s standing committee on home affairs evaluated the 2012 amendment bill and held public consultations in its 167th report. The advice was repeated without the exemption clause. However, the committee rejected the proposal for two reasons: first, that it would disrupt the entire family system and cause unnecessary injustice, and second, that families are well-equipped to deal with such issues and that, in the event of legal recourse, Section 498A IPC[12] already defines cruelty.
In 2015, a private member bill[13] to criminalise marital rape was denied in the House on the grounds that, first, marriage is a sacrament, and second, the law commission is currently considering the issue and will not make a decision until the report is released.Constitutional remedies, Fundamental Rights, and others establish that citizens, regardless of gender, have the right to autonomy. Marital connections should not be used to justify rape leniency, according to the J S Verma committee. Marital rape is wrong. Thus, the husband’s right to rape his wife is as awful as the wife’s duty to forbear and have sexual contact with him. Criminal law offers marital rape alternatives to order this disorder, but they are not enough. Some people try to use cruelty to seek a divorce or relief.
Ground for Divorce
Rape within a marriage clearly meets the concept of cruelty, and it has been regarded as a kind of domestic violence that provides grounds for divorce. Rape during a marriage should have been considered grounds for divorce. However, doing so would violate an exception (ii) of Section 375 of the Indian Penal Code, and it would be inappropriate because it would publicly dispute the legitimacy of the exception. The exemption in IPC section 375 demonstrates that family law is not always obvious. Section 10(2) of the Divorce Act[14], for example, states that a couple can divorce if one of them is found guilty of rape, sodomy, or bestiality after the wedding. It would be simple to apply this rule if the husband was found guilty of raping his wife if this exception did not exist. Also, it’s odd that rape that results in a forced pregnancy isn’t grounds for divorce, but a woman’s refusal to have a child is. From all of the divorce decrees issued under the act, it is clear that any kind of cruelty, assault, inability to perform marital functions such as sexual intercourse, separation for more than two years, or not taking care of the partner, which means that the state has intruded on the privacy or marital sphere, and granting cruelty as a ground, give the scope of validity for marital rape as a ground for divorce. Rape, as previously stated, is a severe crime that comprises an attack, violence, and a loss of morals. Also, the minimum sentence for rape is seven years in prison, which implies that a husband and wife will be separated for more than four years, according to Section 2(iii) of the Dissolution of Muslim Marriage Act, 1939[15], which states that a divorce is allowed if the husband is sentenced to seven years in prison.
Kerala High Court case and the guidelines issued
The Kerela High Court heard an appeal[16] after a cruelty-based divorce and loss of conjugal privileges. Two children were born from an arranged marriage. The appellant-husband claimed to be a doctor despite working in real estate and construction. Real estate let him down. Despite being married, the respondent-wife claimed mistreatment and money demands. The respondent claimed that the appellant stole all of his gold jewellery and that his father frequently handed him Rs.77 lakhs. The appellant accused the respondent of having an extramarital affair, while the respondent accused the appellant of cruelty based on sexual perversion and physical abuse. The Family Court granted the respondent’s divorce but dismissed the appellant’s plea for conjugal rights. The Bench noted that the appellant’s father had told police that he had been forcing him to contribute more money, mistreating his wife and her family, and even threatening his sister and her two children with death over the phone on a regular basis, and that “cruelty” reflects character. The Court must assess behaviour through the lens of social semiotics. The Bench determined that the appellant never loved or cared for the respondent or his children, hence the monetary demand had to be considered. This, together with the continual money-begging, caused her great distress. The respondent testified about being abused physically and mentally. The appellant took use of the respondent’s fiduciary position to obtain further funds from him and her father by alleging his debt.
Affirming the decision of the SC in the case of Samar Ghosh v. Jaya Ghosh(2007)[17], the Bench found the appellant’s licentious and extravagant behaviour unsuitable for marriage. The Bench found cruelty in a spouse’s obsessive desire for wealth and sex. The appellant’s baseless adultery claims were also mental cruelty. The respondent testified that the appellant assaulted her during her pregnancy and forced sex while she was unwell and immobile. She also said she was forced to have the worst sexual perversion and unnatural intercourse. The respondent testified that the appellant slept with her on the day her mother died. The appellant also compelled her to have sex in front of their daughter. The Bench agreed with the respondent that the appellant often pushed her to have unnatural intercourse because there was no substantive challenge to the narration of sexual conduct. The Bench ruled that a husband’s licentious behaviour that violates his wife’s autonomy is marital rape and bodily and mental cruelty, even though it cannot be punished. Black’s Law Dictionary 8th Edition described marital rape as “a husband’s sexual intercourse with his wife by force or without her permission,” which is foreign to Indian penal law. When a husband believes his wife is his property, he commits marital rape. In modern social law, husbands cannot claim physical or social dominance over their wives. Marital rape is defined as sexually assaulting a wife. Bodily integrity violations jeopardise autonomy. As a result, marital privacy is intrinsically linked to individual autonomy, and any intrusion, physical or otherwise, jeopardises privacy. Cruelty. Even if marital rape is not punished, the court might grant divorce for cruelty. The Court granted divorce for marital rape. The Family Court’s divorce was upheld by the Bench because sex in married life demonstrates intimacy and the respondent’s testimony revealed she was compelled to experience all forms of sexual perversions. The Bench concluded that couples must avoid suffering under natural law and the Constitution. Divorce cannot be harmful to spouses. Concerned about women in such marriages, the Bench described this as a heartbreaking example of a woman losing a significant part of her life to fate. We question the legitimacy of the divorce statute on stated grounds in a society that has shifted from social to private philosophy. The Bench suggested reforming divorce legislation to better balance individual choice and best interests and laid out the following guidelines-
“A husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty. In modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with respect to her body or with reference to individual status. Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape. Paternalistic intervention through legislation must be limited to help and aid parties in taking a decision for their own good. Therefore, the framework of divorce law must be with an objective to help individuals to take a decision on their own affairs. The forum provided under law to decide upon the fate of a relationship must be conceded with a power to enable parties to decide on the best possible choice governing their own affairs by themselves and not by wresting the power on a fictional ground to decide on their fate. The court should articulate its power in a scientific temper to help individuals to make decisions on their own affairs. Modern-day mediation, medical help like psychological and psychiatric, involvement by families and friends etc., would progressively help the parties to take a decision of their own choice. Our law also should equip to deal with marital damages and compensation. We need to have a law dealing with human problems with a humane mind to respond. Marriage and divorce must be under the secular law; that is the need of the hour. Time has come to revamp the marriage law in our country.”
The Division Bench, which was made up of Justices A. Muhamed Mustaque and Kauser Edappagath, ruled that the fact that the law doesn’t recognise marital rape as a crime doesn’t stop the court from seeing it as a form of cruelty and granting a divorce because of it. Concerned about the traditional practise of arranged marriage in our country, the Bench said that a woman’s choices are limited because she has to listen to her parents or elders. The Bench also said that if marriage is seen as a way to show off one’s status without showing the values that people or society hold dear, we may miss the point of what marriage is all about.
Conclusion
Finally, regardless of illegality, marital rape should be considered a separate grounds for divorce. It would be preferable if exclusions were deleted to explain, but it is incorrect to label it as cruelty when it is not. Everyone has taken notice of the need to safeguard married women against rape. A harsh reason for divorce is rape in a marriage. Another encouraging step was the 2005 Protection of Women from Domestic Violence Act. Spousal rape is classified as domestic abuse under this statute, however it is not criminalised. Under the same statutes, a married woman can petition the court for a divorce. This point needs to be reiterated because of the discrepancies in the preceding section. Divorces resulting from marital rape will be handled as quickly as possible.
[1] The Indian Penal Code, 1860, § 375
[2] The Indian Penal Code, 1860, §375, Exception 2
[3] Black’s Law Dictionary (8th ed. 2004)
[4] Sir Matthew Hale, Historia Placitorum Conrae: The History of the Pleas of the Crown(Professional Books Limited, P.R. Glazebrook ed., 1971)
[5] Justice Mishra at the inaugural session of National Conference on Transformative Constitutionalism in India: Reflections on Shifting Paradigms organised by the KLE Society’s Law College
[6] Nimeshbhai Bharatbhai Desai vs. State of Gujarat (02.04.2018 – GUJHC) : MANU/GJ/0291/2018
[7] Hindu Marriage Act, 1955, §13
[8] The 42nd Law Commission Report, June 1971
[9] Law Commission of India, Review of Rape Laws, Report No. 172, 2000
[10] Justice J.S. Verma Committee, Report of Committee on Amendments to Criminal Law (January 23, 2013)”
[11] Criminal Law (Amendment) Bill 2012
[12] The Indian Penal Code 1860, §498A
[13] The Criminal Laws (Amendment) Bill, 2014, 28 of 2014. (This Bill was a Private Member Bill proposed by Ms. Kanimozhi on the 28th of November, 2014 (status of bill pending)
[14] Divorce Act, 1869, §10(2)
[15] §2 of the Dissolution of Muslim marriage act, 1939
[16] [X v. X, Mat. Appeal No. 151 of 2015, decided on 30-07-2021]
[17] Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511
Author: Vedant Karia
Juris Centre 