Although India has celebrated its 75th year of Independence, it is indeed disheartening to see the poor status of women. Women had been fighting for their rights and recognition within a patriarchal society for a long. Though certain crucial amendments have been made there are still certain domains that have remained untouched and have not been addressed. Marital Rape, also known as spousal rape, is one such domain. Marital Rape refers to “forcible sexual assault or violence by one spouse towards the other.” [1]In other words, it’s the act of sexual intercourse with a spouse without the spouse’s consent. The incident of marital rape in India is experiencing a significant and alarming rise with each passing moment. The most important factor behind these cases is legal lacunae. Marital rape is mostly, but not exclusively, experienced by women. Statistical data indicates a rising trend in crimes targeting women in India. According to the latest National Family Health Survey (NFHS-5), nearly 1 in 3 Indian women between the ages of 18-49 has suffered some form of spousal abuse, and around 6% have suffered sexual violence[2]. As also stated by Basile, 80% of the women feel that their husbands use some kind of “force” to have sex but are aversive to disclose it. In our legal system, women often lack the means to speak out against instances of sexual violence perpetrated against them by their spouses because marital rape has not been considered to be “real rape”. Hence it remains hidden from the legal purview despite a negative impact on women’s physical and mental health. Many countries have recognized women’s rights and sexual autonomy, and hence marital rape has been criminalized in approximately 150 nations. However, it is still not outlawed in India in fact as per Section 375 of the Indian Penal Code[3], which criminalizes rape, and makes an exception for “sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age.” However, no reason or explanation is stated for this Exception, which takes away the bodily autonomy of married women, their right to life and dignity and their freedom of choice. As the Hon’ble Supreme Court is about to hear the pleas to criminalize such a heinous offense, it is essential to highlight the shortcomings pertaining to the legal provisions which are dealing with marital rape.
UNDERSTANDING MARITAL RAPE IN AN INDIAN SOCIETY
The term marital rape consists of two terms that is marital and rape. The term marital is related to marriage or the state of being married, and rape is an unlawful sexual activity where the victim is forced against his or her will to get into sexual intercourse which is one of the most heinous and 4th most common crimes in India defined under Section 375 of the Indian Penal Code, 1860.
Under Section 375 of the Indian Penal Code, 1860, a man is said to commit “rape” if he penetrates his penis or inserts any object or part of the body not being penis or manipulates any part of the body of a woman to cause penetration, to any extent, into the mouth, vagina, urethra or anus of the woman or makes her to do so with him or any other person under the following seven circumstances:
- Against her will.
- Without her consent.
- With her consent, which is gained by putting her or any other person in fear of death or injury.
- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- With her consent, which is obtained when she or any other person is intoxicated or in a state of unsound mind where she is unable to understand the consequences of her consent.
- With or without her consent, when she is under 18 years of age.
- When she is unable to communicate consent.
Under this section, there are two exceptions where Exception II of Section 375 decriminalizes marital rape and excludes any sexual acts with his wife over 15 years from the definition of rape, irrespective of the consent which, violated the fundamental rights of the women by contradicting their Right of Dignity enshrined under Article 21 and Right to Equality under Article 14 of the Indian Constitution. Therefore, we can understand Marital Rape in general terms because currently, India does not have any legal provision that deals specifically with Marital Rape. So, in general, Marital Rape can be defined as unlawful sexual intercourse between a husband and wife where men force his wife to get into sexual intercourse without her consent.
UNCONSTITUTIONALITY OF EXCEPTION 2 OF SECTION 375 OF IPC
Exception II of Section 375 of the Indian Penal Code, which states that any sexual act by a man with his wife does not amount to rape provided that wife should not be below fifteen years of age. This exception is unconstitutional for the following reasons stated below:
- Exception II is an arbitrary provision: This exception creates an unjust and artificial distinction between married and unmarried girls without any legal rationale behind it and potentially violates the Constitutional principles including Article 15(1) of the Constitution[4] which ex-facie infringes the woman’s fundamental rights and mandates positive discrimination in favor of women and Article 21 of the Constitution[5] by violating the rights of sexual autonomy, bodily integrity and established right to reproductive choices which were equated with personal liberty under Article 21 in Suchita Srivastava v Chandigarh Administration and are of grave social concern and arbitrary.
- Exception II is inconsistent with the POCSO Act, 2012: The Protection of Children from Sexual Offenses Act (POCSO), 2012 comprehensively deals with the issue of sexual offenses against children and criminalizes sexual activities for those who are under the age of 18 irrespective of their marital status which contradicts Exception II of Section 375 states that any sexual intercourse by a man with his wife who is not under 15 years of age, is not rape and exempts any kind of punishments for it. Because of these lacunae, the Criminal Amendment, 2013 inserted section 42A, which gives POCSO power to override this exception, but the courts still provide privilege to this exception as seen by Yasubhai Usmanbhai Shaikh v State of Gujarat[6], Mujamil Abdul Sattar Mansuri v State of Gujarat.[7]
- Exception II is inconsistent with the Child Marriage Act, 2006: In this act, “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age and “child marriage” means a marriage to which either of the contracting parties is a child and criminalizes any sexual intercourse below the age prescribed but this act is inconsistent with the Exception II of Section 375 which does not criminalize marital rape unless the wife is less than 15 years of age. Therefore, this exception is unconstitutional and arbitrary.
MARITAL RAPE: A BREACH OF FUNDAMENTAL RIGHTS
As Exception II of Section 375 of the Indian Penal Code decriminalizes rape by the husband on his wife who is more than 15 years of age, and this exception violates the Fundamental Rights of the women that is Article 14, Article 21 and Article 15 of the Constitution as the statistics revealed by the UN Population Fund shows that over 66% of the married women aged 15-49 in India have experienced violence which includes rape of the woman by her husband.
- Infringement of Article 14: Article 14 of the Indian Constitution[8] guarantees that ‘the state shall not deny to any person equality before the law or the equal protection of the law within the territory of India on grounds of religion, race, caste, sex or place of birth.’[i]
The essence of Article 14 of the Indian Constitution is infused in every law. Since the adoption of the Constitution, no legislation has been enacted that violates or infringes the principle of equality enshrined under Article 14 of the Constitution. The Constitution is the source of all laws and if it states Right to Equality as a Fundamental Right then every statute has to follow it. But Exception II of Section 375 violated Article 14 as it is an illogical distinction based on the woman’s marital status. It leads to unequal treatment for married women by stating that any sexual intercourse between the married couple where the woman is more than 15 years of age is not rape which is discriminatory as compared to the provision made for the unmarried ones where the age limit is 18 years and hence denying equality and equal protection of the law. Therefore, exception II should be criminalized since marriage doesn’t imply consent to sexual activities as men and women being equal under the Constitution cannot be made unequal by Exception II of Section 375 of IPC.
- Infringement of Article 21: Article 21 of the Indian Constitution[9] expresses that ‘No person shall be deprived of his life or personal liberty except according to the procedure established by law.[ii] Life means ‘something more than mere animal.’[iii] It was held in Suchita Srivastava v Chandigarh Administration[10] that Article 21 protects rights of a woman to life, dignity, and bodily privacy which also extends to right to physical and emotional wellbeing. She has the freedom to make reproductive choices, which means she is free to refuse for any kind of sexual activity. It was also held in DK Basu v State of West Bengal that Article 21 protects people from any cruel, inhumane, or humiliating treatment, reiterating that prisoners and detainees should not be deprived of their Fundamental Rights under Article 21 as prisoners do not lose their right to life and dignity while serving a sentence. Likewise, a married woman’s freedom to choose whether to engage or refuse to have any sexual intercourse with their husbands cannot be separated from them. Married woman does not shed their right to consent and be free from rape just by being married[11]. As Justice Krishna Aiyar said in the case of Rafiq v State of Uttar Pradesh[12] that “A Murderer kills the body, but a Rapist kills the soul.” Women have equal rights to life and liberty as men do, as well as the right to be respected and treated equally under the law. Therefore, Exception II of Section 375 should be criminalized as it violates the Right of a woman’s dignity and bodily privacy by decriminalizing marital rape and excludes any sexual intercourse with the wife over 15 years from the definition of rape, irrespective of consent. Article 21 requires the procedure to be fair and non-arbitrary and the impugned classification has to pass the test of reasonableness[13]. As explained above, this exception does not pass the test of reasonableness.
LANDMARK JUDGMENTS CRIMINALISING MARITAL RAPE
Independent Thought v Union of India[14]: On August 6, 2009, a writ petition was filed before the Hon’ble Supreme Court by a society- registered and Non-Governmental Organisation named Independent Thought under Article 32 of the Constitution, challenging the Exception II of Section 375 of the IPC and highlighting the rights violated of married girls between the ages of 15 and 18. On October 17, 2017, the court observed that there is an irrational distinction between made between married and unmarried girls and held that any sexual intercourse between a man and his wife aged 15-18 years would be considered Rape by rightly rejecting the contention made by the State and declared the exception as arbitrary and discriminatory which is violative of Article 14, 21 and 15 of the Constitution. This was the landmark judgment that took one of the most crucial steps by criminalizing marital rape, which is an exception under section 375 and held that any sexual intercourse with wife who is below the age of 18 years would amount to the offense of rape as according to the court anyone who is below the age of 18 is a child as child marriage violates the human rights of a child, right to bodily integrity and reproductive choices.
RIT Foundation v Union of India[15]: The petition was filed by RIT Foundation, All India Democratic Women’s Association (AIDWA) and two individuals challenging before the Delhi High Court that if a husband should be held criminally liable for raping his wife who is under 18 years of age and petition demanded the need to criminalize marital rape. The moot point here as per J. Rajiv Shakdher was whether Exception II of Section 375 of IPC should remain in the statute. Those who wanted the striking down of Exception also wanted Section 376B[16] to be struck down, which deals with sexual intercourse by a separated husband with his wife, although without her consent. Therefore, prayer was made for striking down Section 198B of the Code of Criminal Procedure[17], 1973, which prohibits the court from dealing with an offense which is punishable under Section 376B of IPC. It was observed by J. Arjit Pasayat, “While a murderer destroys the physical fame of the victim, a rapist degrades and defiles the soul of a helpless female.” As J. Varma Committee also advised criminalizing marital rape after the Nirbaya rape case and it held that “Marriage should not consider irrevocable consent to sexual acts” and cited the judgment of the European Commission of Human Rights, C.R. v U.K. in which it was observed that, “A rapist remains a rapist regardless of his relationship with the victim.”
INTERNATIONAL OVERVIEW OF MARITAL RAPE LAWS
Chief Justice Sir Mather Hale laid down the Implied Consent Theory which said, “The husband cannot be guilty of a rape committed by himself upon his lawful wife as because of their matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” Another principle found in the common law system that supported Implied Consent Theory is The Doctrine of Coverture. As per this Doctrine, the legal rights of a woman were comprehended by her husband after marriage. This doctrine was dominant in England until the mid-19th century when the wave of the Feminist movement hit. Marital rape was not a crime before the landmark judgment in1991 of R v R. After various appeals rule was made against marital rape by the House of Lords stating that, “Nowadays it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances.
The first country to explicitly criminalize marital rape was Poland in 1932. Later, Australia as the first common law country, took a step forward and under the influence of the second wave of feminism in 1976 passed reforms and criminalized marital rape. Since 1980s, several common law countries have criminalized marital rape, for instance, South Africa, Ireland, Israel, Ghana, New Zealand, Argentina, etc. In 2002 Nepal also criminalized marital rape and the Hon’ble SC held that the exception of marital rape violated the fundamental rights of equal protection before the law. In USA, from 1970 to 1993, all the states made marital rape a crime. The U.K. also struck down its common law principle that marriage implied a woman’s consent to all sexual acts. Marital rape is punishable for lifetime, particularly if the victim is killed in Liechtenstein, Mongolia and Rwanda. In the Philippines, Serbia and Grenada the punishment for rape is up to 30-50 years and is punishable by 10-30 years of imprisonment if in New Zealand, Greece, Monaco, etc.
WAY AHEAD AND CONCLUSION
As per the above discussion, we conclude that Exception II of Section 375 of IPC is arbitrary and discriminatory in nature, as when the crime is same, why are the laws different. In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) suggested that India to end this marital rape impunity. By not eliminating this discriminatory provision India also violated the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights and as enshrined under Article 26 of the International Covenant on Civil and Political Rights, the domestic laws of the state that are its member should provide equal protection of status and dignity to all of its citizen irrespective of their race and creed. Marital rape here irrationally discriminates between married and unmarried women on the basis of their marital status. As also held by the Karnataka High Court that, ‘Rape is rape, be it by man or husband.’ Therefore, the best possible solution is Legislative Reform that is to criminalize this exception of marital rape as before being a husband he is a man and before being a wife she is a woman, hence marriage should not allow husbands to rule over woman and treat them as a sex object. Rape is itself a heinous crime and has a huge impact on the mental health of the victims and now Indian parliament should make laws to prevent the increasing cases of marital rape or the Hon’ble SC should criminalize section 375 of IPC and declare it totally discriminatory and arbitrary against women’s rights. Marriage is a sacred bond build on trust, understanding, and mutual respect. Committing non-consensual sexual acts within a marriage not only violates a woman’s basic rights but also shatters the core foundation of trust and mutual endorsement. The hearing by the SC on May 9 on the matter of marital rape is poised to be a landmark development in the long-standing issue. It will help redefine Indian women’s rights and agency within the institution of marriage. I assert with utmost responsibility that the number of unreported cases of marital rape is alarmingly high. Many victims choose not to come forward, as they often perceive it as an unfortunate part of their lives and fear the repercussions on their marriage. Those concerned about potential misuse of this provision, as seen with Section 498A, should remember that the possibility of misuse should not deter us from enacting necessary laws. If we use this as a reason, all laws could be invalidated, as any law can be misused to some extent. Therefore, this exception clause must undergo amendment, incorporating stricter provisions to combat this heinous crime. A step in this direction is of paramount importance only to prove that “she is a woman first and wife later.”
[1] (2023) A Ruling On Marital Rape Is Coming Up. Here’s Why You Should Be Watching Closely. Available at: https://equalitynow.org/news_and_insights/a-ruling-on-marital-rape-in-india-is-coming-up-heres-why-you-should-be-watching-closely/ (Accessed: 20 January 2024).
[2] (2023) A Ruling On Marital Rape Is Coming Up. Here’s Why You Should Be Watching Closely. Available at: https://equalitynow.org/news_and_insights/a-ruling-on-marital-rape-in-india-is-coming-up-heres-why-you-should-be-watching-closely/ (Accessed: 20 January 2024).
[3] Indian Penal Code, No. 45 of 1860, India Code (1993), § 375.
[4] India Const. art. 15(1).
[5] India Const. art. 21.
[6] Yasubhai Usmanbhai Shaikh v. State of Gujarat 1988 AIR 922.
[7] Mujamil Abdul Sattar Mansuri v. State of Gujarat (1964) 2 SCJ 461.
[8] India Const. art. 14.
[9] India Const. art. 21.
[10] Suchita Srivastava v. Chandigarh Administration 2009 AIR SCW 5909.
[11] DK Basu v. State of West Bengal (1997) 6 SCC 642.
[12] Rafiq v. State of Uttar Pradesh 1981 AIR 559.
[13] Kartar Singh v. State of Punjab (1994) 3 SCC 569.
[14] Independent Thought v. Union of India (2017) 10 SCC 800.
[15] RIT Foundation v. Union of India 2022 SCC Online Del 1404.
[16] Indian Penal Code, No. 45 of 1860, India Code (1993), § 375.
[17] Code Crim. Proc. § 198(B).
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