Marriage is a delicate topic, seen as a fresh start for two people sharing their lives. While some find it beautiful, others view it merely as a way to fulfill sexual desires. This happens because some see marriage as permission for sex, treating women as objects for men’s desires, which sadly can lead to marital rape.
For certain men, marriage becomes a means to satisfy their sexual needs without realizing they are committing a serious offense unknowingly.
Marital rape is a serious problem in India where one spouse is forced into sex without agreeing. Many groups fighting for women’s rights want to change this and make marital rape illegal. They say it goes against a woman’s right to control her body and is not fair in terms of gender equality. However, not enough politicians are willing to change the law, and some still think this issue should be handled privately within a marriage.
What is Marital Rape?
Marital rape, also known as spousal rape, is when someone has sexual intercourse with their spouse without the spouse agreeing to it. The crucial part is the lack of consent, and it doesn’t necessarily involve physical violence. Marital rape is seen as a form of domestic violence and sexual abuse. While in the past, sex within marriage was often considered a right, now many societies worldwide label engaging in it without consent as rape, leading to increased criminalization. However, some more conservative cultures reject this perspective.
The global focus on issues like sexual and domestic violence within marriages, particularly violence against women, has been growing since the latter half of the 20th century.
Marital Rape and Laws in India
Despite advancements in various fields, marital rape remains unrecognized as an offense in India. Despite amendments, law commissions, and new legislations, this demeaning act is not considered a crime. Examining the options available to women for protection within marriage reveals that legislations have been either absent or unclear, relying heavily on court interpretations.
The current form of Section 375 in the Indian Penal Code reflects the essence of Clause 359 from Macaulay’s Draft Penal Code. Section 375, addressing rape in the IPC, contains an outdated exception clause stating, “Sexual intercourse by a man with his wife, where the wife is not under 15 years of age, is not rape.” Section 376 of the IPC outlines the punishment for rape.
As per the Indian Penal Code, the instances wherein the husband can be criminally prosecuted for an offence of marital rape are as under:
1. When the wife is between 12 – 15 years of age, offence is punishable with imprisonment upto 2 years or fine, or both.
2. When the wife is below 12 years of age, offence is punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.
3. Rape of a judicially separated wife, offence punishable with imprisonment up to 2 years and fine.
4. Rape of a wife of above 15 years of age is not punishable.
In 2005, the Protection of Women from Domestic Violence Act acknowledged marital rape not as a crime but as a form of domestic violence. According to this Act, if a woman experiences marital rape, she can seek judicial separation from her husband through legal channels. However, this law is only a partial solution, and more comprehensive action is needed from the Parliament regarding marital rape.
Domestic Violence Act, 2005:
- It hints at marital rape by any form of sexual abuse in a live-in or marriage relationship.
- However, it only provides for civil remedies. There is no way for marital rape victims in India to initiate criminal proceedings against their perpetrator.
Constitutionality of Marital Rape
In May 2022, the Delhi High Court provided a divided opinion regarding the criminalization of marital rape in India. Justice Rajiv Shakdher invalidated the existing law, deeming it unconstitutional and emphasizing that the right to withdraw consent is a fundamental aspect of women’s right to life and liberty. On the other hand, Justice C. Harishanker rejected the plea to criminalize marital rape, suggesting that the legislative branch should be responsible for any changes, considering the various aspects such as social, cultural, and legal implications. The case will now move to a constitutional bench of the Supreme Court, consisting of Chief Justice D.Y. Chandrachud, Justice P.S. Narasimha, and Justice J.B. Pardiwala for further consideration.
The distinction between public and private spheres plays a crucial role in the practical application of constitutional rights. Establishing a private realm insulated from legal scrutiny deprives women who have experienced marital rape of appropriate remedies. Discussions on the constitutionality of marital rape often encounter obstacles, stalling progress.
In the year 2000, the Law Commission dismissed an argument suggesting that protecting only rape in marital relationships while criminalizing other forms of violence by a husband towards his wife lacked justification. The commission was apprehensive that making marital rape a criminal offense could result in “excessive interference with the institution of marriage.
In 2012, a shift from the prevailing viewpoint emerged when a committee led by J.S. Verma, a retired Supreme Court judge, recommended making marital rape a criminal offense. The Verma committee argued that the immunity stemmed from an outdated idea of married women being regarded as their husbands’ property, obligated to unquestioningly consent to their sexual needs. The committee proposed removing the exception clause and asserted that marital status should not serve as a valid defense for determining consent.
Surprisingly, the Criminal Law (Amendment) Bill of 2012, which followed the Verma Commission report, lacked any provision to criminalize marital rape. The Parliamentary Standing Committee on Home Affairs, which scrutinized the bill, dismissed the idea of criminalizing marital rape. It believed such a move would intensify stress on the entire family system and potentially cause more harm. The committee argued that ample remedies already existed, citing Section 498A of the Indian Penal Code, the Protection of Women from Domestic Violence Act, 2005 (PWDVA, 2005), and various other personal laws addressing marriage and divorce.
Additional arguments have been based on perceived cultural norms in India. The government stated that the international understanding of marital rape might not be entirely suitable in the Indian context due to a societal mindset valuing marriage as a sacred institution.
In the Delhi High Court case, the government asserted that criminalising marital rape might disrupt the institution of marriage and could potentially be misused as a tool to harass husbands. Solicitor General Tushar Mehta emphasized the need for a comprehensive perspective, given the sensitive nature of the “socio-legal issues” involved.
Courts have often avoided challenging the exception clause. For example, the Gujarat High Court acknowledged marital rape as a disgraceful offense but did not invalidate the exception clause or call for its removal. A Delhi High Court ruling stated that compelled sex within a marriage couldn’t be categorised as rape, thereby suggesting that a detailed examination of the facts was unnecessary.
A Different Approach
The debate on criminalising marital rape in India revolves around two key questions.
Firstly, can the state enforce a woman’s obligation to engage in sexual intercourse with her husband?
Secondly, what role does the judiciary play in safeguarding a woman’s constitutional rights under Articles 14 and 21 of the Constitution?
The judiciary typically adopts a vertical approach concerning women’s rights against marital rape, emphasizing a strict public-private division. This approach, ingrained over time, views constitutional rights as protection against the state—a result of the agreement between the state and its citizens.
While the judiciary has been cautious about extending constitutional rights into the private realm in cases of marital rape, there’s selective state intervention. For example, consider court-mandated restitution of conjugal rights outlined in Section 9 of the Hindu Marriage Act, 1956. This section allows the court to grant a decree of restitution if a husband and wife don’t live together “without reasonable excuse.” However, this provision tends to disadvantage women, who may be compelled to resume a conjugal relationship against their will.
Taking a horizontal approach to constitutional safeguards provides valuable insights into this matter.
Institutions establish lasting hierarchies of dominance and subordination, presenting persistent challenges. Consequently, the law should scrutinize practices that potentially violate rights between two parties, considering the backdrop of institutions and the individuals’ positions within them, such as patriarchy, caste, and class.
When a power imbalance exists between parties, allowing one to infringe upon the constitutional rights of another, and this imbalance stems from their positions within a particular institution, these constitutional rights should be enforceable in a horizontal manner.
A significant legal precedent was established in the case of Indian Young Lawyers Association v. State of Kerala (2018). The Supreme Court, with a 4:1 majority, declared the exclusion of women aged 10 to 50 from the Sabarimala temple unconstitutional. Justice Chandrachud’s concurring opinion, aiming to bridge the gap between constitutional ideals and our social reality, is particularly insightful.
Chandrachud referenced the debates in the Constituent Assembly concerning the ‘untouchability’ clause (Article 17). He argued that the framers refrained from precisely defining ‘untouchability’ for two main reasons. Firstly, Article 17 aimed to combat “social norms that subjected individuals to stigmatized hierarchies.” Secondly, extending the scope of Article 17 to situations where “social exclusion of the worst kind is practiced and legitimized based on purity and pollution notions” was possible. Chandrachud applied analogous logic from patriarchy, which discriminates against menstruating women based on their gender, to uphold their constitutional right to participate in “key social activities.”
The Sabarimala court signaled a shift from a binary understanding of public and private spheres to individual autonomy concerning the application of constitutional rights. This narrative simultaneously emphasizes the essence of liberty and the pursuit of equality.
Need for Criminalizing Marital Rape
The authors suggests for increase awareness regarding marital rape, emphasizing its recognition as a criminal offense in the legal framework amid rising crimes against women. They argue that marital rape negatively impacts a woman’s mental and physical well-being, directly violating her right to life and liberty. Despite concerns about the sanctity of marriage, the authors assert that criminalizing marital rape is essential, as accusations of such acts reveal underlying weaknesses in the marital foundation.
Instances of spouses coercing sexual acts resulting in harm often go unaddressed, as the legal system currently does not recognize marital rape when spouses live together. The authors contend that rape infringes on a woman’s right to privacy, emphasizing the need for laws that do not discriminate based on a woman’s marital status.
Additionally, the authors propose criminalizing marital rape and call for lawmakers to enhance gender-neutral laws, ensuring justice for both men and women. They suggest treating marital rape as a valid ground for divorce in personal laws. Drawing inspiration from Californian Criminal Law, they recommend adapting laws to suit the societal needs of our country. The authors stress the importance of creating awareness in educational institutions as the initial step to eradicate this social issue. They assert that protecting women’s rights is not solely the state’s responsibility but a collective duty of citizens, emphasizing the need for a shared societal conscience