Marital Rape: A Crime Yet to be Criminalized in India

This article is authored by Sanskriti Goel , a 1^st year law student from Chanderprabhu Jain College of Higher Studies and School of law, GGSIPU. This article discusses the heinous crime of marital rape which any of the Indian laws fail to address effectively.

“They say that marital rape does not become a rape. And why would it be? Since, he had posted a logo of his surname on her body.”

—Anonymous

INTRODUCTION

Marriage is a social institution consisting of a pure relationship between two souls, but unfortunately, the social evil of rape does not even spare this bond of purity. According to the National Family Health Survey (hereinafter ‘NFHS’) conducted in 2015-16, the average Indian woman is 17 times more likely to face sexual violence from her husband than from others. The same data indicate that 5.4% of women were physically forced to have sexual intercourse with their husbands even when they did not want to. Further, the data shows that an estimated 99.1% of sexual violence cases go unreported, and in most of such cases, the perpetrator is the husband of the victim.

In spite of these worrisome reports, Indian law fails to effectively address this heinous crime of marital rape.

What is Marital Rape

Marital rape is the act of forceful and non-consensual sexual intercourse with one’s spouse. Marital rape is also known as spousal rape. The essential element here is lack of consent. It has been observed in many instances that it takes no time for domestic violence to turn into marital rape. So in simpler words, marital rape is a form of domestic violence and sexual abuse.

Lacunae in the Law

Section 375 of Indian Penal Code, 1860 (hereinafter ‘IPC’) defines rape as:

A man is said to commit “rape” if he—

penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.—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.

Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.—With or without her consent, when she is under eighteen years of age.

Seventhly.—When she is unable to communicate consent.

However, exception 2 to Section 375 states that sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. Therefore, the exception discriminates between married and unmarried females and defeats the entire objective of Section 375 which is to protect women from all kinds of sexual assault. Perhaps, as per the current law in India, it is presumed that there is a perpetual ‘implied consent’ on part of a woman to have sexual intercourse with her husband. Here is a question to ponder upon how can the meaning of ‘non-consensual’ differ in marital rape? It seems like rape laws in India are made by people who believe in patriarchy and they are trying to tell all the women in India that once you get married your body becomes a property of your husband and you lose all of your rights over it.

Article 14 of the Constitution of India gives the right to equality. The exception 2 to Section 375 violates Article 14 by discriminating among women on the basis of their marital status. Not only this, the exception also violates Article 21 of the Indian Constitution, which gives the right to life. The Hon’ble Supreme Court of India in the State of Karnataka v. Krishnappa 2000 CriLJ 1793 held that sexual violence is not only a dehumanizing act, but is also an unlawful intrusion of the right to privacy and sanctity of a female. It was also observed that non-consensual sexual intercourse amounts to physical and sexual violence. Thus, marital rape clearly violates the right to live with dignity of a married woman. Moreover, the exception defeats the entire objective of Section 375 which is to protect women from all kinds of sexual assault as it creates a class of women which is not protected under this section. The wife cannot get out of the sexually abusive relationship and the husband who should be deemed a rapist continues committing the same crime under the tag of marriage.

The Protection of Women from Domestic Violence Act, 2005 consider marital rape as a form of domestic violence. Under this Act, if a woman is raped by her husband, she can go to the court and obtain a judicial separation from her husband. The Act does not consider marital rape as a crime and hence does not protect woman against marital rape completely. 640

In 2016, former Union Minister for Women and Child Development, Maneka Gandhi said, “The concept of marital rape as understood internationally cannot be suitably applied in the Indian context due to various factors like level of education, illiteracy, poverty, myriad social customs and values, religious beliefs and the mindset of the society to treat the marriage as a sacrament.” The Government of India is of the view that if marital rape is criminalized in India, it would destabilize the institution of marriage. Apparently it is believed that criminalizing of marital rape would lead to malicious prosecutions against husbands of those wives who want to take some kind of revenge from their husband.

Moreover, the IPC is based on the ‘Doctrine of Coverture’. The doctrine of coverture belongs to the common law foundation which postulates that the rights and obligations of a married woman are subsumed by her husband’s rights and obligations and does not consider a married woman as an independent legal entity. As a result, the notion of ‘implied consent’ in marriage continues to exist till now.

CONCLUSION

India is one of the only 36 countries where marital rape is still not criminalized. The Justice J.S. Verma committee which was formed after pan India outrage over the 2012 Nirbhaya gang rape case had also recommended criminalizing marital rape in India. But all in vain. What changes after marriage? Why is a sexual predator allowed to hide behind the mask of a husband? Why marriage is considered as a license to ‘lawfully rape’ your wife? Interestingly, in India marital rape only exists in the data, not in law. While we call for women empowerment, we fail to guarantee even the basic rights to a married woman. The doctrine of the coverture is no longer applicable in India and this calls for elimination of Exception 2 to Section 375 and stringent laws on marital rape.

Rape is rape. A rapist is a rapist, whether a husband or a stranger.

REFERENCES

The Indian Penal Code, 1860
https://www.google.com/amp/s/indianexpress.com/article/opinion/columns/the-impunity-of-marital-rape/lite/
https://prsindia.org/policy/report-summaries/justice-verma-committee-report-summary
https://www.google.com/amp/s/www.thehindu.com/opinion/editorial/criminalising-marital-rape-and-maneka-gandhi/article8352904.ece/amp/
https://www.mondaq.com/india/crime/691482/law-on-marital-rape-a-much-needed-reform-in-our-legal-system

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