Marital rape has been forming one of the major concerns. The recent development we can see on this topic is that the Supreme Court has agreed to consider early listing of pleas challenging Marital Rape Exception.[1]
Under S.375 exception 2 of the Indian Penal Code,1860[2] clearly states that a sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age is not rape.[3]
Marital rape is a rape committed by a husband on his wife or in a more complex way it is a rape committed when the perpetrator is the victim’s spouse.[4] Rape can be defined as a sexual intercourse or sexual penetration where there is a lack of consent. The burden of proof is on the victim to prove the presence of a lack of consent. In the case of minor, the burden of proof is on the other side as a minor is presumed to be incapable of giving consent.
I. History of reasons for marital rape to be not considered as a crime
There are mainly three major reasons for not considering marital rape as a crime and they have mainly originated from the reports, recommendations, and various governmental steps involved in it.
The first reason paved its way from the report of the 42nd Law Commission[5]. This report helped in analyzing and understanding marital rape from the perspective of the government. In this report, two suggestions were laid down one being that when husband and wife do not live together, the exception must not apply and the other was regarding non-consensual sexual intercourse with a woman aged between twelve and fifteen. The report failed to clearly define the reasoning that it had in defining both suggestions. To summarise, the report stated the assumption of consent between husband and wife and it also considered marital rape as being a less serious offense when compared with rape. In this report, there was no clarification mentioned: “whether the exception clause must be retained or deleted?”
In the 172nd Law Commission Report[6], marital rape was said to hamper the sanctity that a marriage has in itself and the same question was avoided,
In 2012, a committee was constituted under Justice J. S. Verma (Retd.) suggested for the criminalization of marital rape. It made two suggestions, firstly it suggested criminalizing marital rape and secondly, it said that the law must specifically state that a marital relationship or any other similar relationship is not a valid defence for the accused, or relevant while determining whether consent existed or not and that it was not be considered a mitigating factor for the purpose of sentencing. This report dealt with a notion or belief that existed in society about a wife being the property of a man and that he believed that he had a full right over her. It also mentioned that this notion is outdated and does not have any relevance in today’s world. The world has moved far from this belief today, the modern concept of marriage exists where husband and wife are given equal rights.
Criminal Law Amendment Bill, 2012 [7] was drafted taking the suggestion of the J.S. Verma Committee but this bill contained no provision for criminalizing marital rape.
Parliamentary Standing Committee on Home Affairs in its 167th Report reviewed the Amendment Bill,2012[8]. The committee refused to consider marital rape as rape due to the family system that existed in the society and it also said that many remedies already existed in the Indian Penal Code, 1860 that can be taken for the recourse (concept of cruelty under S.498A of IPC,1860).
In 2015, a bill was proposed by a Member of Parliament to criminalize marital rape[9] but the same was rejected and the reason given by the Home Minister is the mindset of the society to treat the marriage as a sacrament.
Hence, the main three reasons can be concluded to be:
- Marital rape will damage the idea of marriage.
- Alternative remedy or a recourse already existing in the society.
- Cultural values in India.
II. The notion of marital privacy
“Marital Privacy” is a term used by the state that helps them in making a statement concerning marital rape by stating that if marital rape is criminalized then it would infringe the marital privacy. It has divided marriage into two spheres: the private sphere and the public sphere. According to the state, penetrating into the private sphere cannot be done as the Constitution cannot be applied in this sphere.
So, here the question that arises is “What is this private sphere?”. There is not any definite or particular definition of the private sphere and it has changed from case to case as of now.
In the case of Harvender Kaur v. Harmander Singh Choudhry[10], which is subsequent to the decision that was taken in T. Sareetha v. T. Venkata Subbaiah [11], the court held that S.9 of the Hindu Marriage Act,1955 (S.9 of Hindu Marriage Act talks about restitution of conjugal rights) violated Article 14,19 and 21 of the Constitution. In the case of Harvender Kaur, the court overruled the judgment given in T. Sareetha and held S.9 to be valid and the reasoning given by the judges was that marital privacy denotes a private sphere in which the court cannot enter.
Hence, according to this, the state does not have any right to make judgments or any regulations concerning this field but there has been selective penetration by the state in this private sphere. It is evident from changes that the state makes with regard to the abortion laws that exist in our country. Abortion is also a private sphere in the marriage as it depends on the husband and wife to have it or not but the state has entered this private sphere and has made laws and regulations.
After the above two judgments, the Supreme Court was asked once again to check the validity of the judgments in the case of Saroj Rani v. Sudarshan Kumar Chadha,[12] and once again the Supreme Court held restitution of conjugal right is not constitutional and it is not in the violation of Article 14 as marriage proves to be criteria of differentia that distinguishes married women and women.
Later, in K.S. Puttaswamy v. Union of India, [13]for the first-time privacy was recognized as a fundamental right under Article 21, and analysing it we can say that the right to privacy should not be grounded in a marriage in such a way that it is only accessible to one particular gender and disrespecting the other.[14]
Taking all these concepts and considering cases of post- Puttaswamy we can say firmly that a need to review this very concept of marital privacy lies.
III. Cultural Barrier in criminalizing marital rape
In India, people are more culturally driven than in the rest of the world, and due to this many barriers exist for an act to become a crime. Likewise in our case, the state feels that if they termed marital rape as a crime, it would hurt the people of the country and would destroy the very meaning of marriage. However, we must realize that criminalizing marital rape does not fall into a cultural issue but is an infringement of the fundamental right.
Society is advancing and the beliefs that would lie earlier are also changing with the moving generation. For example, consider Sati, which earlier used to be a tradition and was later realized to be the most inappropriate tradition, and also Dowry, which was restrained after passing the Dowry Prohibition Act, 1961. The caste system that existed was all part of the cultural issue and was later recognized to be inappropriate and was thus, said to be an infringement of the fundamental right.
As we see, there are many acts that in the past were used to be culturally right but later were found to be not consistent with morality and with the legal provisions. Therefore, there is a need to not restrict an act just because it is a cultural barrier.
IV. Examining Recent Landmark Rulings Bringing Marital Rape to the Forefront
Independent Thought v. Union of India,[15] in its landmark judgment, provided the acknowledgment of the rights of the girl child. The court in its judgment reads out exception 2 of IPC,1860, and stated that a rape with a girl child of age 15 to 18 is also a rape and also found the exception to be violative of Articles 14,15 and POSCO’s rule. This case put forward issues related to exception 2 of S.375 being unreasonable. The question that comes forward is that just because a female has attained an age of 18 or above would she be denied the same protection?
Under articles 14 and 15 there is no discrimination allowed to be done on the basis of age hence, when a female exceeds the age of 18 does the fundamental right change or it does not exist?
The same was questioned in a very recent case of RIT Foundation v. Union of India[16] in which the Delhi High Court gave a split judgment regarding exception 2 of S.375 of IPC,1860. This case dealt with the issues that were essential to the question of marital rape being considered a crime.
Analysing Justice H.C. Hari Shankar’s opinion the core issue of his marital rape being an exception was the intelligible differentia that makes it to be the exception of Article 14 and prevents it to be an infringement of the fundamental right. The second issue according to him was that he believed that there already existed many remedies that married women take for seeking help and hence, marital rape doesn’t need to be considered the same as rape.
Rape is rape and it cannot be termed as sexual assault just because it happened in a marriage and by her husband. If in a gang rape, a woman is raped and one of the accused is her husband, will he not be called an accused and treated in the same manner as others or would he be termed as doing only sexual assault or any other offense lesser than rape.
V. Difficulty in criminalizing marital rape
There are many reasons for criminalizing marital rape but the process of criminalizing it is much more challenging. This is because of the reasons that pertain to our society.
The First Reason lies in the Definition of marital rape. There is not any particular definition as to what constitutes or what not constitutes marital rape.[17] There can be many manipulations if we define marital rape because of its broad nature. The second reason is to what constitutes consent in marital rape. The question of when consent can be assumed and when can it be said to not exist is the major reason for not criminalizing it. The third reason is related to the filing of fake cases by women. This has been posing a problem while determining cases of sexual assault. In cases related to sexual assault, we can observe that there are many fake cases filed by women, and due to these false accusations, the males of the family are already suffering. Therefore, if we criminalize marital rape the punishment will be much more as compared to sexual assault, and if a woman takes unfair advantage of this provision there is a huge risk involved.
Therefore, it is much more difficult to criminalize marital rape as there are many areas that need to be looked at and then only proceed further.
VI. Conclusion
Marital rape should be declared as a crime because of the harm it causes to women and poses a problem to society. Marital rape has been a long debate, if not criminalized there should be a provision that addresses marital rape. The process of addressing it as a crime will definitely be a complex one and also there should be the introduction of adequate procedural safeguards so that no misuse can be done by anyone.
Within a marriage, there should not be an assumption of consent in today’s world, and addressing marital rape as a crime is also necessary for gender equality and for advancing the position of women that existed earlier. The reasoning given by the government in the past was not very relevant today and had to be reviewed. It is also true that there are many criteria to be considered and should be done in a quicker way.
The government has proposed a bill in the parliament for the introduction to repeal and replace IPC,1860 but in the new Bharatiya Nyaya Sanhita once the state has avoided criminalizing marital rape and made no statement regarding it. This has to be changed as the state cannot simply avoid the question and the issue altogether.
Hence, a committee should be made, and all the areas should be looked.
[1] https://www.thehindu.com/news/national/three-judge-bench-to-hear-pleas-relating-to-criminalisation-of-marital-rape-supreme-court/article67097000.ece
[2] The Indian Penal Code, 1860, §375.
[3] The exemption excludes rape committed in a marriage if the age of the wife is more than fifteen years. Recently, the Supreme Court struck down this part of the exception. Recently, the Supreme Court struck down this part of the exception clause in Independent Thought v. Union of India, (2017) 10 SCC 800: AIR 2017 SC 4904.
[4] In this article, since the discussion is couched in the Indian context, we will assume that the perpetrator is the husband, and correspondingly, the victim is the wife.
[5] Law Commission of India, Indian Penal Code, Report No. 42 (June 1971), available at http:// lawcommissionofindia.nic.in/1-50/report42.pdf
[6] Law Commission of India, Review of Rape Laws, Report No. 172 (March 2000)
[7] The Criminal Law Amendment Bill, 130 of 2012
[8] Standing Committee on Home Affairs, Fifteenth Lok Sabha, Report on The Criminal Law (Amendment) Bill, 2012, One Hundred and Sixty-Seventh Report, 45,
[9] 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)
[10] Harvender Kaur v. Harmander Singh Choudhry, 1983 SCC OnLine Del 322 : AIR 1984 Del 66.
[11] T. Sareetha v. T. Venkata Subbaiah, 1983 SCC OnLine AP 90 : AIR 1983 AP 356
[12] Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90 : AIR 1984 SC 1562
[13] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
[14] https://www.bostonreview.net/articles/martha-c-nussbaum-privacy-bad-women/
[15] Independent Thought v. Union of India, (2017) 10 SCC 800 : AIR 2017 SC 4904
[16] RIT Foundation v. Union of India, 2022 SCC OnLine Del
[17] https://timesofindia.indiatimes.com/india/dont-blindly-follow-west-in-criminalising-marital-rape-govt/articleshow/89188920.cms
Author: Prakrity Jaiswal
Juris Centre 