Author: Sanjukta Majumdar
Year of study: Fourth-Year
Institute of affiliation: Dept. of Law, University of Calcutta
Although the laws in India provide adequate protection to married women against other forms of violence within the confines of marriage, they fail to recognise and criminalise marital rape. Various Law Commission Reports, parliamentary debates, and judicial precedents have attempted to address the social problem critically over the years. However, as of yet, there is no solution in sight. In light of the divided stance of the Indian legal community on the matter, the author has made a nuanced approach to address and analyse the encumbrances in the way of criminalising marital rape with regard to the necessity to formulate a stringent law criminalising marital rape. The author also seeks to question the constitutionality of the exceptions to the substantive provision of rape and campaigns for redressal of all victimised married women from the clutches of their perpetrating husbands. We conclude with the note that criminalisation of marital rape would not destroy the sanctity of the institution of marriage but grant an effective recourse to the victims of marital rape and would instead elevate them to a stature equal to men in terms of decision-making and sexuality.
Keywords: marital rape, criminalisation, spousal sexual violence, institution of marriage, individual autonomy, redressal, effective solution.
The ability to make choices within marriage and on every aspect concerning it is a facet of human liberty and dignity which the Constitution protects- Joseph Shine
Marital Rape can be defined as forceful or non-consensual sexual intercourse with one’s spouse. Spousal sexual violence has been a harsh reality for eons and the women entangled in the sacramental bond of marriage seemingly have normalized their husbands’ forceful acts for a myriad of conventional reasons, rooted in patriarchy and internalised misogyny. To intrude into the realms of marital affairs to determine the commission of such an offence is often perplexing as it infringes privacy in sexual relations. However, with the landmark judgment of Joseph Shine v. Union of India, the Supreme Court decriminalised adultery and thereby iterated that the realm of marital relations is not beyond judicial scrutiny. According to the Indian government’s latest National Family Health Survey, about 30% of Indian women aged 18-49 reported having experienced spousal violence, and sadly many such offences go unreported and unaddressed. The dismissal and non-addressal of victimised women’s petitions against marital rape in the present age also depict the apathy and disingenuousness of a patriarchal legal system.
The problem of marital rape dates back to the colonial period when after marriage the very legal existence of the woman was consolidated with that of the husband, and the woman was considered a chattel devoid of any individual autonomy. The presumption that marriage between a husband and wife is a civil contract that bestows such privileges to the husband over his wife’s body is unjustified. This persisting custom, called the Doctrine of Coverture, is in pursuance of the Hale’s doctrine, where marriage has been regarded as the legal and implied consent to marital relations between husband and wife, and the wife cannot retract from performing her matrimonial duties subsequently.
The Indian Penal Code (hereinafter referred to as ‘IPC’) of 1860 has treated marital rape as an exception to the offence of Rape, in consonance with the archaic thought processes and legal analogies of the West. The draconian age-old tradition that men are the rulers and they ought to subjugate the wives is an extremely regressive practice that the Indian laws and customs must do away with. The social evil of marital rape has its foundation in the question of forced marriages and the criminalisation of love. In India, marriage is governed by personal laws, and unlike Hindus, all religions consider marriage to be a social/ civil/ religious contract; therefore, it is deemed that there might be a lack of consensus when it comes to criminalisation of marital rape. Although several provisions such as Sec. 319, 324, 354, 354A, 354B, 498A, 503, 509 offer legal recourse to women against sexual violence by their spouse, specific stringent laws must be formulated to check such forms of sexual abuse within the institution of marriage.
JUDICIAL PRECEDENTS- A WAY FORWARD
The judicial decisions over the last few decades have ruled for equal protection of men and women and have attempted to ensure marital security which develops a significant ray of hope in the minds of Indian women. In a 2018 landmark judgment, the Karnataka High Court pronounced that the institution of marriage does not confer the special privilege or a license for unleashing a brutal beast. Sexual offences have a grave impact on the psychological and physiological health of women, which adversely affects their right to live with dignity, right to bodily autonomy, and liberty to make independent choices, thereby violating their fundamental rights guaranteed under the Constitution of India. As upheld by the Supreme Court in Justice K.S. Puttaswamy (Retd.) v. Union of India, the right to privacy as a fundamental right includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations” and in no manner can that right be transferred or seized by the husband.
Another striking disparity on the ground of gender that cannot be overlooked is brought about by the Exception 2 pursuant to Sec. 375 of IPC, which exempts men from being incriminated if they commit non-consensual sexual intercourse with their wife, who is not less than 15 years of age. That the exception securing rights of women below 15 years of age, is praiseworthy, but the differential treatment that the married women have been subjected to beyond 15 years of age is expressly arbitrary and unfair. In the landmark judgment of Independent Thought v. Union of India, it was noted that marriage is not an adequate reasonable classification to subsume the rights of married women. However, the decree failed to curb the explicitly autocratic exception to the provision. It was also noted in the petitioner’s submissions in the recent case RIT Foundation v. Union of India that the differentiation between married and unmarried women stood unjustified by the test of reasonable classification and is thus violative of Art. 14 and 15, 19 (1) (a) and 21. Marriage being a sacred union could never be ground to muffle the voice and freedoms of married women. In this Delhi High Court case, a split verdict was pronounced due to PILs filed by the NGOs RIT Foundation and All India Democratic Women’s Association, challenging the Exception 2 to Sec. 375 of IPC. Justice Shakder believed that during the subsistence of marital relations, conjugal expectations were apparent but unbridled access to such privilege disregarding her physical and mental condition is unfair. Justice Hari Shankar, however, refused to agree to the former’s contention and referred the matter to the Apex Court for posing a substantial question of law. Just as the petitioners, the author also believes that if the PIL is allowed by Apex court, the normative force of this judicial decision could materialize into the long-cherished goal of marital security from sexual violence.
IMPEDIMENTS TO CRIMINALISATION OF MARITAL RAPE
The contemporary world has witnessed numerous common law countries, including United States, South Africa and Ireland criminalising marital rape. India, however, has fallen behind when it comes to protecting women within the institution of marriage. Given the widespread internalised misogyny and patriarchal societal structure, women in India endure sexual violence and choose to protect their marriage and reputation in society rather than fight for their rights. Consequently, since marital rape has been normalised and tolerated in Indian households for centuries, its criminalisation is envisaged as a futile endeavour. Moreover, determining the extent of sexual violence exercised by the husband and consequently finding corroborative evidence to establish the guilt is particularly difficult. Lastly, the legislators fear the sheer misuse of the law criminalising marital rape, since there would be floodgates of frivolous and false litigations criminalising innocent men. Nonetheless, the reasoning that applies here is an accused can be convicted of a criminal offence only if all the available evidence indicts him of the offence beyond any reasonable doubt and not otherwise. Thousands of women cannot be left remediless in the apprehension of misuse of the much-needed law. It is the responsibility of the legislature and the judiciary to ensure that the law against sexual violence does not become an instrument to harass innocent husbands.
The courts, in several instances have ruled that selective State intervention is important to protect the institution of marriage, like the restitution of conjugal rights and that such an act does not intend to cause any unwanted intrusion into the privacy and sanctity of marriage unless there arises a situation that necessitates it. Significant efforts have been made by the Justice Verma Committee, where it was expressly said that marital relationship between the perpetrator husband and victim wife does not imply consent. It was further connoted that women cannot lose their sexual independence post-marriage and that rape must be considered an offence before or after marriage.
The Indian lawmakers must widen the definition of Rape under Sec. 375 of the Indian Penal Code incorporates marital rape as a grievous offence and must strike down the controversial and admittedly outdated exception to eliminate injustice. India has evolved greatly when it comes to giving equal protection, rights, and representation to women, but marital rape continues to put an indelible blot on India’s progressive image. Strict legislative campaign and effective implementation of anti-marital rape laws against subjugation of women within the confines of marriage would take India a step ahead in preserving the autonomy of women. Sexual abuse not only scars the body of a woman but also negatively impacts the mind and soul. Therefore, this offence should be effaced with the inclusion of all perpetrating men under the procedural provision of Sec. 376 of the IPC. This monumental change would bring the husband and wife on equal pedestal rendering her independent of her husband regarding bodily and sexual decisions. Toleration of intergenerational trauma must not be validated, and equal legal protection must be ensured to all wives and non-wives. The legislators must consider this social issue and develop an efficacious solution that would shield the lives of married women and simultaneously not tear down the sanctity of the institution of marriage.
-  SCC OnLine SC 1676
- Shoba Suri, Mona Debosmita Sarkar, ‘Domestic Violence and Womens’ Health in India,’ Insights from NFHS, Available at <https://www.orfonline.org/research/domestic-violence-and-womens-health-in-india-insights-from-nfhs-4> last visted on May 30, 2022
- Albertina Antognini, ‘Non Marital Coverture’  2139, 2143
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-  10 SCC 1
-  10 SCC 800
-  SCC OnLine Del 1404