Marital Rape

Marriage is not consent. This sentence though of few words has a very big impact on Indian society. It reflects the orthodox thinking of a husband in relation to his wife and the shameful eyes of society. Marital Rape is one such ambit of orthodox thinking which is not penalized in India and still in the eyes of husband and society, husband stands correct if he indulges in such an act against wife and therefore not punished.

Many countries in the developed world have recognized marital rape as a crime but not India and the definition of rape which has been provided within the Indian Penal Code, exempt marital rape from its scope and implementation.

This exclusion can be justified by the reason that a wife is considered subservient to her husband and therefore husband as master have full control over her. But this justification after the inclusion of the concept of equality has fainted. Another and relevant justification to this exclusion is that when a man and woman get married, the ceremony is a notion of “implied consent” i.e., there exists an indisputable presumption that consent to sexual activities has been granted for a lifetime of that woman within the premise of the institution of marriage. This issue has emerged as a major backdrop of the Indian Penal statute and various debates and discussions have happened overtime for re-considering the reasons behind the exception clause.

In 2012, a committee was constituted under Justice J.S. Verma (Retd.) for consideration of the issue of criminalization of marital rape. A report was submitted by the committee titled ‘Report of the Committee on Amendments to Criminal Law’ (‘J.S. Verma Report’) which gave a two-fold recommendation and stated that first, the exception clause from the statute must be removed and second, that consent must not be considered as a mitigating factor and the status of marital relationship does not, therefore, prove the commission as lawful. But later in the amendment bill, no change was brought into the statute.

Standing Committee Report of 2012 reviewed the issue arising due to that bill and recommended that no amendment need to be brought because sufficient remedies already exist and the provision of cruelty in IPC i.e., Section 498A can deal with such issue. The same argument was put forth by the Ministry of Home Affairs when the Criminal Laws (Amendment) Bill, 2014 was introduced in the parliament and it talked about the criminalization of marital rape. This attitude over the years has not remained limited to legislature alone but judiciary also in certain cases, even though the exception has never been challenged, have denied the consideration of this question. Marriage has been over the years considered as a sacred institution of a delicate nature which the state does not consider right to interfere with. But when an activity committed in the name of this sacred institution is unlawful and state does not act, such non-interference hampers the dignity of such woman and makes her status vulnerable.

Marital rape does not only hamper the dignity of a woman but also violates her fundamental rights guaranteed under Article 14 and 21 of the Constitution. However, judicial authorities have overtime ignored the bringing of fundamental rights concept within the private sphere of marriage and within this sphere constitutional law has no application.

Therefore, when rape independently is seen as a crime in society, marital rape, on the other hand, is exempted to be a crime and therefore fundamental rights become unenforceable in this marital sphere. Marital Rape does not become a reasonable classification of marriage within Article 14 of the Constitution. Supreme Court in the case of Smt. Saroj Rani v. Sudarshan Kumar Chadha upheld the constitutional validity of restitution of conjugal rights concept. The court stated that “the object of RCR is to preserve a marriage and hence it comes within the reasonable classification of Article 14”. Therefore, in this sense, a state can compel, by upholding husband’s petition of restitution, a woman to have a sexual relationship with her husband. Therefore, rape being in violation of a right under Article 21, marital rape is justified because it comes within the reasonable classification. This reasonable classification is the clear violation of women's right to equality and entails implied consent of wife to involve sexually when in reality it is absent in totality. This reasonable classification has over the years, given support to maintain the stability of the sacred institution of marriage by society. For the maintenance of this stability noncriminalization of marital rape is arbitrary.

Supreme Court partially came to the struck down of the exception clause of Section 375 of IPC in the case of Independent Thought v. Union of India. According to the Protection of Children from Sexual Offences Act, 2012 it is an offence to enter into sexual intercourse with a child of below 18 years of age but the exception clause of IPC allows such activity when a person gets married to a girl between 15 to 18 years of age and makes it legal to perform. The Court stated that it is unconstitutional to treat a girl differently on the basis of marriage as it does not qualify as a reasonable classification under Article 14 of the Constitution and therefore women’s rights cannot be ignored in the name of marriage. According to the above statement of the Court, it can be validly stated that this classification done under the constitution is arbitrary when fundamental rights of woman have been kept at stake to protect the institution of marriage and therefore the exception clause is unconstitutional. The above-made arguments give sufficient evidence for the criminalization of marital rape in India. The need of bringing an amendment to the provision of rape within IPC i.e., Section 375 is necessary which remove the exception and deal with the problems of consent, changes to be brought in the personal laws and the matter of burden of proof to be taken into consideration.

The recommendations made by the J.S. Verma Committee must be taken into consideration which asks for the removal of the exemption clause, express mention of it as no defence, absence of a presumption of consent and the punishment to be same as that of rape. One of the important clauses of the amendment will be the absence of a presumption of consent. This clause will play a crucial role in deciding the matter of marital rape and can also affect the rights of a woman if it will be dealt differently from other rape cases by the judiciary by the imposition of either higher evidentiary requirement or by the presumption of consent.

The absence of consent must be considered on the basis of circumstantial evidence and the statement given by the wife into court against the husband on the charges of rape. The ideal consideration of consent would be treating it in the same manner as that in other rape cases. Since the commission of marital rape is a private affair production of direct evidence is very difficult and is also affected by the issue of women’s social imagery.

The absence of force also cannot be considered as a present of consent in these cases. But this consideration might suffer from a shift in marital rape cases because when we see marital rape as one of the resultant of domestic violence, there is believed to exist certain physical injury or cruelty on the part of the husband. But, such non-consensual intercourse in the absence of force can be established by the expert testimonies and testimonials given by doctors which will also establish the mental or the psychological cruelty caused during such commission. The debate of marital rape is done on the vital ground of establishing equality between husband and wife and bringing marriage out of the reasonable classification to illegalize marital rape and improve the status of women in the four walls of society. such illegalization will not only give her dignity but will also protect her rights ensuring her the right to equality on reasonable grounds and also the liberty to live freely without any societal discourse and by not harming her reputation in the society.

The need has already arisen to remove this major indifference present under criminal law and therefore bringing the provision of rape viable with the constitutional provisions of liberty and equality. The exception clause of Section 375 of IPC clearly fails the equality test of Article 14 and therefore its argument of non-criminalization has no legal standing. The exception has been proved unconstitutional and the reason non-acceptance of marital rape affecting the institution of marriage is not a valid reason to not criminalize it. Therefore, in light of this argument the recommendations given by the J.S. Verma Committee are of great value to remove the major lacuna in criminal law and make it sounds along with the provisions of constitutional law so that rape does not become a defence for husband and he cannot take unlawful benefit of the sacred institution of marriage. In Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court said that “rape is a crime against basic human rights and a violation of the victim’s” most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution. Yet it negates this very pronouncement by not recognizing marital rape. In a patriarchal society like India where marriage is considered as a license to sex and is so sacrosanct that criminalizing marital rape is not even easy for the Indian judiciary. In Emperor vs. Shahu Mehrab, the husband caused the death of his minor-wife by rash or negligent act of sexual intercourse and thus was convicted under section 304A of the Indian Penal Code. In Saretha vs. T. Venkata Subbaih, the Andhra Pradesh High Court held: “There can be no doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of a person” If State-enforced sexual intercourse between husband and wife is a violation of the right to privacy, surely a woman’s right to privacy is equally violated in case of non-consensual sexual intercourse with the husband. Rights and duties in a marriage, like its creation and dissolution, are not the terms of a private contract between two individuals. The right to privacy is not lost by marital association.

The Supreme Court, in the State of Maharashtra vs. Madhukar Narayan Mandikar, had referred to the right of privacy over one’s body. Here, it was decided that a prostitute had the right to refuse sexual intercourse. It is astonishing that all stranger rapes have been criminalized and all females, other than wives, have been given the right of privacy over their bodies thereby envisaging the right to withhold consent and refuse sexual intercourse.

In Sree Kumar vs. Pearly Karun, the wife alleged that she was subjected to sexual intercourse by her husband against her will and consent during the stay with the husband.

The judiciary seems to hold an idea that rape within marriage is not possible or that the stigma of rape of a woman can be salvaged by getting her married to the rapist. Rather than, making the wife worships the husband’s every whim, especially sexual, it is supposed to thrive, mutual respect and trust. This ongoing crime is a huge violation of the fundamental right of freedom of married women as well as the right to their bodies. Marital rape, is still not categorized as an offence under Indian Penal Code. Section 375 of IPC lays down the acts which are considered as 'rape,' but the proviso to this section very clearly excludes marital rape from the offence of rape. The proviso to this section reads as follows: ‘Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape’ It is explicit from this proviso that if a man engages in sexual intercourse with his own wife even without her consent, then it is totally justifiable under law. The only exception to this is that if the girl is below 15 years of age, then it would amount to rape and will be punishable. But what's the logic behind this? Do women of age group 15 years or above lose their right to give consent? Or this patriarchal society takes her right and replace it with the power of their husbands to overpower her?